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Knee
Injury Sustained While Turning Not Compensable as Equally Exposed to
Risk in Normal Non-employment Life
Overstreet
v. Tamko Building Products, Inc. and Ace American Insurance Company,
Case No. SD37171 (Mo. App. 2022)
FACTS:
The claimant worked as an asphalt plant operator for the employer.
On the date of injury, he saw a truck arrive and began walking on the
asphalt path to the load station when he realized he had forgotten
his card to access the load station. He planted his foot to turn
right, turned around to retrieve his card and heard a “pop”
and felt tearing in his left knee. When he was seen at the hospital,
he reported that he was “in a hurry and was walking very fast
when he suddenly switched directions”. In both his deposition
and hearing testimony, he stated that the area where he was walking
on the date of injury was not out of the ordinary, not wet, not slick
and the area was lit. He also claimed that he was walking “downhill”
or “across a decline” or a “slope” when his
knee popped. However, he did not indicate that the slope was a
contributing factor to his knee popping. He also noted that although
there were cracks in the area where he was walking, he could not be
sure if he stepped on a crack. The claimant’s supervisor also
testified that there were no other employees that had issues in this
area due to any issues with the ground. Dr. Koprivica testified on
behalf of the claimant and opined that the incident was the
prevailing factor in causing his condition.
The
ALJ found that the claimant did not sustain a compensable injury
arising out of and in the course and scope of his employment because
the risk source, walking on asphalt and changing directions was a
risk to which the claimant was equally exposed to outside of his
employment. The claimant appealed and the Commission affirmed. The
claimant again appealed.
HOLDING:
The Court noted that it is not enough that a claimant’s injury
occurs at work or even while engaged in a work-related activity. To
show causal connection between the injury and work, the risk involved
must be one to which the worker would not have been equally exposed
in his non-employment life. The Court found the claimant failed to
meet his burden as he acknowledged that in his normal non-employment
life, he often walks and changes directions. Also, the asphalt lot
was not dissimilar from numerous other asphalt lots in his community
which had similar cracks, unevenness and slopes. Therefore, the
Commission’s denial of benefits was affirmed.
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Injury
Compensable as Claimant Not Exposed to Twisting in Tight Space and
Working at Fast Pace Outside Of Work in Non-employment Life
Durr
v. Clarks Mountain Nursing Center, Americare Systems, Inc. and Safety
National Casualty Company, Case No. SD37212 (Mo. App.
2022)
FACTS:
The claimant worked as a CNA for the employer. On March 5, 2015, she
was performing one of her job duties which included freshening each
resident’s pitcher with water and ice. She took the pitcher
from the resident’s room out to the cart which remained in the
hallway for sanitary purposes and brought the pitcher back into the
resident. There was testimony this was performed at a “very
quick pace” as there was only one water/ice cart provided by
the employer and this was to be shared with the other three §s.
In
order to access this particular resident’s pitcher on the
bedside table, she had to step sideways through a narrow space
between the bed and the wall and then to exit the space she had to
pivot to her right to get out of the room. On her date of injury, the
top of her left leg went with her body and the bottom of her left leg
stuck resulting in a twisting motion of the knee. Ultimately the
claimant underwent surgery on her own.
The
ALJ concluded that the claimant’s injury was compensable as the
injury to her left knee did not come from a hazard or risk unrelated
to her employment to which she would have been equally exposed to in
her normal non-employment life. The ALJ found that passing out ice
required the claimant to move about in a tight, narrow space between
the resident’s bed and the wall to deliver fresh water and ice.
Furthermore, the claimant was wearing the recommended non-skid shoes
while navigating this tight space and that non-skid shoe stuck to the
floor causing a twisting injury to the left knee.
The
Commission reversed the decision of the ALJ. It found that testimony
showed there was no time limit for passing out ice and the claimant
was not required to wear closed-toed, non-skid shoes. The Commission
noted she would be equally exposed to twisting in her normal
non-employment life. The claimant appealed.
HOLDING:
The Court of Appeals reversed the decision of the Commission and
noted that the claimant’s injury arose out of the
particularized working conditions and work requirements of the job.
It noted for this particular resident, the employer placed the
bedside table in the one-foot gap between the wall and the bed so
that his wheelchair would not bump into the bedside table. Also, it
was the employer’s preference that the claimant wear
closed-toed non-skid shoes and it was part of the claimant’s
job duties to fill water pitchers in an expedient fashion which
required her to navigate the one-foot gap in a dark room and to pivot
between facing forward and backward within that confined area. In
light of this, it was determined that the claimant was not equally
exposed to this same risk in her normal non-employment life and the
decision of the Commission was reversed and remanded for an entry of
an Award consistent with the Award of the ALJ.
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Sitting
in Parked Vehicle on Public Street is Noncompensable as a Risk Source
of Injury for Which the Public is Equally Exposed
Flemons
v. Land of Oz Academy and FirstComp Insurance Company,
Injury No. 17-003266
FACTS:
Claimant and his wife owned a child care center, Land of Oz, the
employer. The claimant and his wife would eat lunch while sitting in
employer’s vehicle parked on Kingshighway while working for
employer. While eating lunch, they discussed business activities.
Although there is a staff lounge inside employer’s building,
they prefer to eat in the truck for privacy and avoid phone calls for
employee questions during the lunch hour. During lunch, they were
rear ended by a vehicle traveling on Kingshighway and sustained
injury. The ALJ found that claimant’s injury was not in the
course and scope of employment.
HOLDING:
The Commission affirmed the Judge’s denial of compensation. The
risk source of cliamant’s injury was not work related or
related to a risk to which the employee was not equally exposed. The
claimant was not placed in an unsafe location due to his employment
but chose to eat lunch in the parking lane of Kingshighway rather
than the available conference room and office space inside employer’s
location. The risk source is the immediate cause of the injury. In
this case, discussing business was not the risk source causing the
injury. Instead, the risk source was being lcoated in the parking
lane of a busy thorogouhfare. Parking on Kingshighway Boulevard was a
risk freely available to the public.
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Claimant Must Show a Causal Link Between Work Activities and New
Alleged Injury After
Prior Settlement For Fusion Surgery
Toska
v. American Pulverizer, Injury No. 17-075220
FACTS:
Claimant started working for employer in 2006. In March 2009,
claimant sustained a work injury and had severe pain in his low back
and left leg. In September 2009, the claimant underwent surgery at
L4-5 by Dr. deGrange but continued to have pain. In August 2011, he
underwent a fusion at L4-5 by Dr. Kitchens. The fusion helped
claimant’s pain in his back and he no longer had pain in his
leg. The 2009 injury settled for 30% of the body.
When
claimant returned to work following the fusion, he had pain “all
of the time” but was able to fully perform his job. On
cross-examination, claimant admitted he was still having pain after
his August 2011 surgery, but did not tell anyone he needed to see a
doctor. On Septmeber 9, 2017, the claimant went to the ER and
reported that over the last two months, his low back pain redeveloped
and was worse everyday. Although he did not recall an injury, he
reported his work activities exacerbated his back pain. He saw Dr.
Kitchens on September 10, 2017 and underwent surgery the next day.
Dr. Kitchens performed a revision of the hardware at L4-5 and a L3-4
decompressive laminectomy, discectomy and fusion.
The
claimant’s expert, Dr. Volarich testified that the claimant had
been able to perform all of his usual duties at work following his
2011 surgery until September 8, 2017. He opined that the heavy
lifting the claimant performed for the employer was the prevailing
factor causing his severe increase in back and leg pain. He testified
that heavy lifting, moving in awkward positions and twisting would
lead to a herniation above the level of the previous fusion. He found
35% PPD for the prior 2009 injury and additional 35% PPD to the back
for the 2017 injury and concluded claimant was permanently and
totally disabled as a result of his 2009 and 2017 back injuries.
On
cross-examination, Dr. Volarich admitted the claimant did not report
an accident occuring on September 8, 2017 but did report an accident
in July 2017. He admitted it was not unusual for adjacent levels to
break down after a spinal fusion. He also conceeded a disc herniation
can occur spontaneously and more likely in someone with preexisting
degernative disc disease.
Dr.
Kitchen testified for the employer. He said the claimant was returned
to work with no restrictions after his fusion surgery for the 2009
work injury. He then saw the claimant on Septmeber 10, 2017, after
the ER visit. The claimant gave a history of pain for a couple of
months that had worsened over a couple of days before he went to the
ER. The claimant did not give an indication to Dr. Kitchen that his
back pain was related to work activities.
Dr.
Kitchens further testified the claimant sustained a large disc
herniation at L3-4 and given the size, he would not expect a person
to be able to perform heavy job duties. He stated that the claimant
would not have been able to work a full shift on Friday, September 8,
2017 given the amount of pain he was in on September 10, 2017.
Dr.
Kitchens opined that the actual herniation is an acute event. A disc
herniation has to be linked in time to a particular activity in order
to be medically casually linked to that activity. He opined the
claimant had a spontaneous herniation due to age related
degeneration.
HOLDING:
The ALJ found that claimant failed to prove by medical evidence
that there was a causal link between his new back injury and some
distinct feature of his job duties for the employer and therefore,
the claim was denied. The Commission affirmed the decision.
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Claimant
Must Prove Work is More Likely Than Not the Prevailing Factor of
Carpal Tunnel and Not One of Several Factors Such as Age and
Prediabetes
Nevois
v. Meramac Industries, Injury No. 19-078979
FACTS:
The claimant was a 56 year old factory worker who developed carpal
tunnel syndrome. His first position for the employer was as a packer
for six years. Then, the claimant worked for 2-3 months as a taper.
In July 2019, he began a machine operator job for employer and worked
30 days in late July and August.
The
claimant had preexisting medical conditions of obesity (BMI 35-39),
smoking addiction and prediabetes. The claimant did not experience
any hand complaints while working as a packer or taper but reported
complaints after 2-3 weeks as a machine operator.
Employer’s
medical expert testified that 2 weeks as a machine operator was not
long enough exposure to cause carpal tunnel, even if the clamps on
the machine required significant force to close. He noted that there
is a correlation between BMI’s over 30 and the development of
carpal tunnel syndrome. The doctor opined that the claimant’s
work as a machine operator did not accelerate or cause the carpal
tunnel syndrome to manifest. He also opined that older age was a
causative factor.
The
claimant’s medical expert testified that the claimant’s
repetitive work with his hands for the employer, in particualr, the
machine operater position, which required repetitive and forceful
closing of clamps, was the prevailing factor causing the carpal
tunnel syndrome and need for treatment. The doctor did not have an
opinion as to whether the claimant’s obesity was a contributing
factor, but stated it was not the prevailing factor causing the
carpal tunnel syndrome. However, he was uncertain whether prediabetes
could cause the condition.
HOLDING:
The Judge denied the claim. He noted that the burden of proof for
compensation is on the claimant and he did not prove more likely than
not that work was the prevailing factor causing his medical condition
and disability. The experts in the case were evenly divided and
neither was overwhelming. Based on the evidence, the judge concluded
that the cause of the claimant’s carpal tunnel syndrome was
multifactorial, including obesity, prediabetes and claimant’s
hand intensive job for 30 days and all appear to be substantial
factors. The claimant’s work as a machine operator may have
been a triggering factor but none of the factors were more important
than the other factors. The Commission affirmed the judge’s
decision.
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The
Employer and Insurer on the Day of Last Exposure Prior to the Date of
Injury are Liable for the Toxic Exposure; Also, Date of Injury is
Date of Diagnosis
French
(deceased) v. Bill’s Truck Repair and the Larson Group, Inc.
d/b/a MidAmerica Peterbuilt and Bloomington Compensation Insurance
Group, Missouri Employer’s Mutual Insurance Company and
Standard Fire Insurance Company, Injury No. 14-080361
FACTS:
The employee worked as a diesel mechanic at Bill’s from 1989 to
2006. He began working as a diesel mechanic at MidAmerica in July
2006. He last physically worked at MidAmerica on October 1, 2014.
In
September 2014, the employee began to experience leg pain.
Ultrasounds revealed blood clots in both legs and employee was
prescribed medication and special hosiery. On September 30, 2014, the
employee returned to the doctor for difficulties with memory and
controlling his emotions. On October 1, 2014, after working at
MidAmerica for four hours, employee left work and went directly to
the hospital and was admitted for a TIA. He suffered a second stroke
on October 4, 2014 and on October 7, 2014, a biopsy revealed stage
III. B adenocarcinoma of the lung with metastasis. The employee
underwent treatment including chemotherapy for his lung cancer and
other cancer related conditions. He ultimately passed away on July
24, 2015 of a stroke as a consequence of underlying metastatic lung
cancer.
Prior
to October 1, 2014, the employee worked full time and had not been
diagnosed with lung cancer.
The
claimant’s medical expert opined that the claimant’s
employment as a diesel mechanic caused his exposure to diesel fumes
which led to the development of the lung cancer from which the
employee ultimately died. The employers and insurers did not present
contrary evidence. The ALJ found that the employer, MidAmerica and
their insurer, Standard Fire Insurance Company liable for the medical
care, TTD, death benefits and funeral expenses.
HOLDING:
The Commission affirmed the ALJ’s decision. Based on the
standard set forth in
§287.063.3
RSMO 2005, “the moment it becomes reasonably discoverable and
apparent that an injury has been sustained related to such exposure,
is the date of injury in an occupational disease. As such, the date
of injury for the employee was October 1, 2014.” The employee
was last exposed to diesel fumes that caused his death from lung
cancer on October 1, 2014. Therefore, the employer, MidAmerica, is
liable for the death of employee. The Workers’ Compensation
carrier for MidAmerica as of October 1, 2014, was Standard.
Therefore, Standard is the liable carrier.
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A
Preexisting Non-Compensable Injury Does Not Qualify as a Preexisting
Condition Under the Statute for Fund Liability if it is Unrelated and
Does Not Aggravate or Accelerate the Primary Injury
Schebaum
v. Treasurer of the State of Missouri / Custodian of the Second
Injury Fund, Case No. WD84765 (Mo. App. 2022)
FACTS:
The claimant became deaf in both ears as a child. Many years later,
he sustained a compensable work injury to his right knee in 2007 and
settled with the employer for 45% PPD of the right knee. In January
2014, the claimant sustained a new compensable work injury to his
knee and was unable to work thereafter due to the physical nature of
the job. He settled with the employer for the 2014 injury for 25% PPD
of the left knee but left his claim open against the Second Injury
Fund for permanent total disability.
At
the Hearing, both medical experts testified by deposition that the
claimant was permanently and totally disabled as a result of the
prior right knee disability and his hearing loss together in
combination with the disability from the primary injury to his left
knee. The claimant’s vocational expert did testify at the
Hearing that the claimant’s permanent total disability was the
result of only his prior right knee injury combined with the primary
injury to his left knee. However, the vocational expert’s
testimony was inconsistent with his opinions stated in his written
reports and his testimony was found not to be credible. The
Commission determined that the claimant had not established Fund
liability for permanent total disability based on the credible
evidence in the record.
HOLDING:
The Court affirmed the Commission’s decision. Under §287.220.3,
the hearing loss failed to meet the three criteria necessary to
establish a permanent total disability claim against the Fund as
required by the statute. Although the hearing loss exceeded the 50
week minimum threshold and was not a compensable injury, the
preexisting hearing loss was unrelated and did not aggravate or
accelerate claimant’s subsequent work related injury (his 2014
left knee injury) and therefore, the Commission properly disregarded
the hearing loss when determining whether the claimant established a
compensable PTD claim against the Fund.
The
Court further agreed that by disregarding the nonqualifying hearing
loss, the Commission was correct in finding no credible medical
evidence in the record that the prior right knee injury alone, when
combined with the current 2014 left knee injury rendered claimant
permanently and totally disabled. Therefore, there was no PTD Fund
liability.
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Only
Qualifying Pre-existing Conditions Can be Considered When Determining
Fund Liability; Also Life Factors Can be Considered in Determining
PTD
Klecka
v. Treasurer of Missouri as Custodian of Second Injury Fund,
Case No. SC99280 (Mo. App. 2022)
FACTS:
In April of 2014, the claimant sustained a compensable injury to his
left shoulder and settled with the employer for 35% of the shoulder
and 21.5% of the body referable to depression as a result of the work
injury. He then filed for perm total disability against the Fund
alleging five separate injuries, a traumatic brain injury in 1981, a
left knee surgery in 1982, an work related injury to the right thumb
in 2005 which settled for 15% disability, a work-related hernia in
2006 which settled for 7.5% of the body and a 2007 work-related right
shoulder injury which settled for 35% of the shoulder. Dr. Volarich
and Ms. Gonzalez testified on behalf of the claimant who concluded
that the claimant was PTD as a result of the work injury and all of
his pre-existing medical conditions. The ALJ found that the Fund was
responsible for PTD benefits. The Fund appealed arguing that the ALJ
errored as the ALJ was limited to considering the claimant’s
qualifying pre-existing disabilities of at least 50 weeks and only
his right shoulder injury met that threshold. The Commission agreed
and reversed the decision of the ALJ finding that the Fund was not
responsible for benefits. The claimant appealed.
HOLDING:
The Court found that the claimant’s experts’ opinions
that he was PTD were not sufficient to show that he was entitled to
Fund benefits as their testimony considered non-qualifying
pre-existing disabilities in their PTD analysis. The Court noted that
there was no evidence that the claimant’s primary injury
combined with his one qualifying pre-existing disability resulted in
PTD. However, the Court did note that the statute does not prohibit
the consideration of other “life factors”, including but
not limited to those discussed by the claimant including age,
education, transferable skills and physical appearance. The Court
noted that it was not clear from the record as to whether the
Commission considered these factors but did note that it is proper to
do so under the statute. Therefore, the Commission’s decision
denying benefits from the Fund was affirmed.
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Under
Strict Construction, No Temporary Benefits Are Payable After
Termination for Positive Drug Test After Primary Injury; Also Work
Accident Must Cause Mental Injury to be Compensable
Crowley
v. Clarcor/General Electric, Injury No. 14-101480
FACTS:
The claimant filed a claim for alleged mental injury and physical
injury to her hands and wrist due to carpal tunnel syndrome from
repetitive trauma. After reporting in October 2014 that she thought
her carpal tunnel symptoms were work related, she was moved to a
light duty position. On November 19, 2014, the claimant reported an
injury to her left wrist while pulling tape off a gasket. The
employer’s policies included drug testing after acute injuries.
The claimant was told to reveal any prescriptions she was taking and
to supply pertinent medical records. She did not. The claimant tested
positive for both methamphetamines and amphetamines. The results of a
second test on the same sample by a different lab were the same.
Based on the positive drug test, the claimant was terminated under
employer’s drug policy.
In
his Temporary Award, the Judge found the claimant was unable to
compete in the open labor market since November 21, 2014 and awarded
back TTD and additional TTD. He also found that the drug test had no
significance because it was almost certainly a “false positive”
due to claimant’s use of prescription Bupropion (Wellbutrin)
for depression.
At
the Final Hearing, there was testimony from a board-certified
toxicologist that Bupropion can cause a “false positive”
on the initial screening test but not on the subsequent
confirmation test. The claimant submitted a report from a
non-certified toxicologist, but it failed to explain why the claimant
tested positive for both amphetamines and methamphetamines in the
subsequent confirmation test.
The
employer’s medical expert testified the claimant’s
depression developed before 2008 and preceded any carpal tunnel
complaints. The claimant’s expert testified that the claimant’s
depression “correlated” with her carpal tunnel symptoms
and was, therefore, the prevailing factor in causing the depression.
HOLDING:
In the final Award, the Judge found the certified toxicologist more
persuasive and that the employer had administered their policy
relating to drug use appropriately. She found the claimant was
terminated for post injury misconduct. She stated that with strict
construction, when an employee is terminated for post injury
misconduct, under §287.170.4, no temporary disability benefits
are payable. As a result, neither TTD nor PTD were payable and the
employer was entitled to a credit for the TTD paid in compliance with
the Temporary Award.
Since
the Judge found that the claimant was terminated based on post injury
misconduct, the Final Award was not in accordance with the Temporary
Award and the doubling of compensation provision of §287.510
does not apply. The claimant is not entitled to costs and legal fees
under §287.560 as the employer did not unreasonably defend the
claim leading to the Temporary Award.
Lastly,
since the claimant did not allege a specific accident with regard to
mental injury, she must prove her mental injury flows from her
physical injury/the bilateral carpal tunnel syndrome. Under
§287.120.9, if mental injury results from disciplinary action or
termination, it is not compensable. The Judge found that the claimant
did not meet her burden to prove her depression arose out of
employment as a result of her carpal tunnel. The claimant’s
expert opinion was not convincing. Just because one condition occurs
at the same time as the other, it does not mean the conditions are
causative of each other.
The
Commission affirmed the ALJ’s Decision noting that the term
“post injury misconduct” refers to misconduct after the
primary workers’ compensation injury, in this case, the carpal
tunnel and not the claimant’s November 19, 2014 acute injury.
Therefore, the employer terminated the claimant post injury
employment due to post injury misconduct and the claimant is not
entitled to TTD due to strict construction of §287.170.4.
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Court
Undecided if Prior Employee Has Standing Under the Statute for
Retaliation Claim for Refusal to Rehire
Lisle
v. Meyer Electric Co., Inc., Case No. WD84620 (Mo. App.
2022)
FACTS:
On April 27 and May 2, 2018, the employee, Lisle, asked his foreman
to fill out an injury report because he was suffering from carpal
tunnel. In response to his second request, the forearm told the
employee that if he asked for an injury report, the employer would
lay him off. On May 2, 2018, the employer’s president learned
that the employee wanted to file an injury report and workers’
compensation claim. The next day, he terminated the employee.
On
May 14, 2018, the employee filed a workers’ compensation claim
and a lawsuit against the employer for termination in retaliation for
exercising his rights under the Workers’ Compensation Law in
violation of §287.780.
A
year later, the employer posted a job opening and the employee
expressed interest with the union which provided a referral. In a
phone call, the foreman told the employee he would probably hire him
back, but later that day, texted him that the employer’s
president would not hire him back. The employer acknowledged that
pursuant to an agreement with the union, the employee has priority
over the other applicant who was hired.
The
employee filed a second lawsuit against the employer alleging
retaliation for exercising rights under the Workers’
Compensation Law in violation of §287.780. The employer filed a
Motion for Summary Judgement which argued that because §287.780
provides a cause of action to “any employee” who has been
discharged or discriminated against by his or her employer did not
provide a cause of action for the claimant because he was not an
employee when the employer refused to rehire him. The Court agreed
and entered a Summary Judgement for employer.
HOLDING:
The Court stated that because §287.780 must be strictly
construed, it concluded that the statute does not authorize a claim
for retaliation based on acts that occur after any employment
relationship has ended. However, because of the general interest and
importance of the legal issue of first impression presented by this
case, the Court did not rule on this appeal and instead, ordered a
transfer to the Missouri Supreme Court.
The
Court discusses employee’s argument that “employee”
as used in §287.780 was not meant to be limited to current
employees because there are other places where Chapter 287 uses
“employee” for former employees to recover benefits for a
workplace injury occurring during an existing employment
relationship. Likewise, a claim for retaliatory discrimination under
§287.780 also depends inherently on acts that occurred during an
employment relationship.
The
potential chilling effect of post-employment retaliation on a former
employee’s willingness to exercise rights under the workers’
compensation law presents an important policy concern. On the other
hand, if §287.780 is constructed to expose an employer to claims
of retaliation based on conduct after an employment relationship has
ended, the exposure would be perpetual and could have a potential
chilling effect on the former employer’s willingness and
ability to defend against workers’ compensation claims.
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Commission’s
Authority to Assess Costs Against a Party is Discretionary
Donnell
v. Trans State Airlines and Insurance Co. of The State of
Pennsylvania, Case No. ED110126 (Mo. App. 2022)
FACTS:
Following the Hearing in August 2011, the ALJ awarded claimant TTD,
PTD and future medical treatment. In December 2014, the claimant
moved to commute her permanent total disability benefits. The
employer objected to the Motion to Commute, requested a hearing and
argued a new IME is permitted under §287.210.1. In 2015, the
Commission used an Order remanding the case for an Evidentiary
Hearing on the Motion. A year later, the claimant moved for the
Commission to reconsider their 2015 Order, but the Commission issued
a new Order in 2016 declining to reconsider their prior Order.
Five
years later, the ALJ conducted the Remand Hearing. The ALJ submitted
the findings and the Commission issued its final decision. The
Commission denied claimant’s request to commute her PTD
benefits, but they did commute claimant’s Award for future
medical treatment because they found employer had failed to comply
with the Final Award by discontinuing claimant’s coverage for
medical treatment when she filed her Motion to Commute. However, the
Commission expressly denied an award for costs, including attorney’s
fees and other expenses, against either party under §287.560.
The claimant appealed.
HOLDING:
The Court affirmed the Commission’s decision. While §287.560
provides that the Commission may assess the cost of a
proceeding against a party who brought prosecuted or defended the
proceedings on unreasonable grounds, neither the statutory
language nor caselaw compels such an Award. The Appellate Courts
have cautioned the Commission to exercise their discretionary
statutory power with great caution and only when the case for
cost is clear and the offense egregious. Based on the evidence
presented at the Remand Hearing, the Commission concluded that the
delay was the result of “unreasonably antagonistic conduct”
by both parties, and accordingly did not assess cost against
either party. Because the Commission did not exercise its discretion
to award costs, the Appellate Court’s standard of review is
limited to an abuse of discretion. The Court held that the
Commission did not abuse its discretion but carefully considered the
issue.
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Medical
Provider Not Entitled to Prejudgment Interest Under Statute
Surgery
Center Partners, LLC D/B/A Timberlake Surgery v. Mondelez
International, Inc. Case No. ED109776 (Mo. App. 2022)
FACTS:
Employee suffered a work-related accident and sustained a torn
rotator cuff. Employer’s Workers’ Compensation insurance
carrier authorized surgery at Timberlake Surgery.
Thereafter,
Timberlake filed an Application for Payment of Additional
Reimbursement of Medical Fees with the Division of Workers’
Compensation but in the § of the Application asking for “Date
Notice of Dispute Received From Employer/Insurer” they entered
“TBD”. The Division accepted the Application and held a
Hearing. The ALJ found Timberlake’s charges were fair,
reasonable and permissible and did not charge more than allowed under
§297.140.3 but was not entitled to additional reimbursement. She
also concluded Timberlake was not entitled to prejudgment interest
and neither party was entitled to attorney’s fees or costs. She
also noted that the Division had jurisdiction and absence of the date
regarding the notice of the dispute did not deprive the Division of
jurisdiction. The Commission affirmed.
HOLDING:
The Court dismissed employer’s appeal for their blatant
disregard of Rule 84.04 regarding the requirements for appellate
briefs. First and foremost, their brief failed to identify the ruling
they challenged, state concisely the legal reasons for their claim of
reversable error or explain in summary fashion, in the content of the
case, the legal reasons supporting their claim of reversable error.
Compliance with Rule 84.04 is mandatory.
The
Court also dismissed Timberlake’s cross-appeal arguing that the
Commission erroneously denied their request for prejudgment interest
under Missouri’s general prejudgment interest statute, §408.20.
The Commission had denied the prejudgment interest because under the
strict construction of §287.800.1, prejudgment interest cannot
be awarded without express statutory language. Nothing in §287.140,
which governs Medical Fee Disputes, affirmatively provides a right to
prejudgment interest. The Court stated that the statute does not
allow the Commission to go beyond the language of the applicable
statute to infer authority to award prejudgment interest.
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