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Injury
is Not Compensable Because Work Was a Triggering or Precipitating
Factor
Hasselbring
v. Macon County Nursing Home District, Injury No.
21-079066
FACTS:
In 2021, prior to the work injury, the claimant experienced pain in
his left leg while walking for more than 30 minutes. Dr. Fernandez
confirmed a very large aneurysm of the popliteal artery was
thrombosed or occluded. He described the claimant as having a
“chronic condition”. He recommended that the claimant
undergo a bypass procedure, but he wanted to wait to see how his
symptoms progressed.
On
November 3, 2021, the claimant was working at Employer’s
nursing home when a wheelchair ran over his left foot. That night,
Dr. Fernandez performed emergency surgery to revascularize the
claimant’s left leg to increase the blood supply. The surgery
was unsuccessful, and the claimant’s left leg was amputated
above the left knee.
Dr.
Fernandez opined that the injury from the wheelchair was the
prevailing factor causing acute ischemia or a lack of blood supply,
and the wheelchair accident was the prevailing factor in causing soft
tissue injuries as well as the lack of feeling, coldness, and
bruising of the claimant’s left leg.
Dr.
Rao, on behalf of Employer/Insurer, provided his opinion that the
diagnosis of thrombosed popliteal aneurysm, with acute on chronic
vascular ischemia, was the natural progression of his preexisting
condition. He opined that the prevailing factor of the claimant’s
loss of limb was an occluded left large popliteal artery aneurysm. He
stated there was a known risk that without a bypass this leads to
distal ischemia and limb loss, which is exactly what happened to the
claimant.
The
parties proceeded to a Hardship Hearing before the ALJ who issued a
Temporary or Partial Award determining that the claimant met his
burden of proving that he sustained a work-related accident that
caused a compensable injury to his left leg. The Employer/Insurer
filed an Application for Review with the Commission.
HOLDING:
The Commission found one point dispositive: the claimant’s
work-related accident was a triggering or precipitating factor and
not the prevailing factor in causing the claimant’s medical
condition and disability. The Commission reversed the ALJ’s
temporary or partial Award and issued its final award denying
compensation.
The
Commission noted that Section 287.020.2 RSMo, for the definition of
“accident”, that “an injury is not compensable
because work was a triggering or precipitating factor”. Also,
Section 287.020.3(2)(a) states an injury shall be determined to arise
out of in the course of employment only if: it is reasonably
apparent, upon consideration of all the circumstances, that the
accident is the prevailing factor in causing the injury. Section
287.020.3(1) states that injury by accident is compensable only if
the accident was the prevailing factor in causing both the resulting
medical condition and disability.
Dr.
Rao credibly and persuasively opined that the wheelchair accident was
not the prevailing factor in causing the claimant’s preexisting
condition to escalate to a level of disability. The doctor explained
that if the claimant’s circulation had been normal, an injury
from a wheelchair running over his foot “would have been
treated with leg elevation, ice, and anti-inflammatories and not
urgent thrombectomies in an attempt to get blood flow back into the
foot.” The doctor testified that the wheelchair accident
triggered or precipitated more ischemia to a foot that was already
poorly perfused, and that it was enough to send him into a limb loss
situation.
The
Commission found that the claimant was involved in a work-related
accident on November 3, 2021 when the wheelchair rolled over his left
foot. However, based on the credible and persuasive evidence, they
found the accident was not the prevailing factor in causing both
his resulting medical condition and disability. The opinions of Dr.
Rao were more credible and persuasive than those of Dr. Fernandez.
Therefore,
the Commission found the November 3, 2021 wheelchair accident at work
was merely a triggering or precipitating factor in causing the
claimant’s medical condition and disability and therefore, not
compensable. The Commission reversed the Judge’s Award.
The
Commission also noted that the Tillotson case is not on point.
In contrast to Tillotson, the evidence in this case
established that the claimant did not sustain a compensable injury
because the accident involving the wheelchair was not the prevailing
factor in causing both his resulting medical condition and
disability. Absent the requisite proof of a compensable injury,
Tillotson does not support an Award against Employer/Insurer
for the cost of past or future medical treatment.
Employer
Did Not Waive Its Right to Select Medical Providers for Claimant’s
Future Treatment
Helmig
v. Springfield R-12 School District, Case No. SD38181 (Mo.
App. 2024)
FACTS:
The claimant sustained an injury, and she was referred to Dr.
Galligos for treatment and he then discharged her from care.
Subsequently, the claimant contacted Employer and requested
additional treatment, but Employer denied the request since Dr.
Galligos had discharged her.
Because
the claimant was still experiencing symptoms, she sought additional
medical treatment on her own using her health insurance. Dr. Thompson
diagnosed thoracic outlet syndrome and provided surgery for that
condition.
At a
Hearing, the ALJ found the claimant was entitled to unpaid medical
expenses in the amount of $152,935.67 as well as future medical
treatment. As to future medical treatment, the ALJ designated the
claimant’s medical providers, including Dr. Thompson, as the
authorized treating physicians.
On
appeal, with respect to future medical, the Commission affirmed the
ALJ’s finding that Employer was liable to provide and pay for
future medical treatment reasonably required to cure or relieve the
effects of the claimant’s injury. However, the Commission
disagreed with the Judge’s implicit finding that Employer’s
refusal to authorize medical treatment in the past justified
mandating that future treatment may only be provided by or at the
direction of the physicians Claimant had previously self-selected.
Thereafter, the claimant appealed.
HOLDING:
The claimant argued that the Commission erred in modifying the ALJ’s
Award by ruling Employer had the right to select Claimant’s
future medical providers. However, the argument failed because
Section 287.140 says nothing about an Employer waiving its right to
select medical providers. To the contrary, it states an Employer
shall have the right to select the medical provider.
The
Court noted that while an Employer that fails to provide treatment
after being notified of a claimant’s injuries is liable for the
cost of treatment provided by the claimant’s providers, there
is no language in the statute that waives the Employer’s right
to direct future treatment, and neither the Commission nor the Court
is at liberty to read such language into the statute. The Court noted
that “strict construction of a statute presumes nothing
that is not expressed.”
Because
the statute contains no language waiving the Employer’s right
to direct future medical treatment, the Commission did not err in
determining Employer has the right to direct future medical care.
Claimant Sustained Compensable Mental Injury Due to Actual Work
Events That Would
Have Caused Unusual and Extraordinary Stress to a Reasonable
Highway Worker
Mantia v. Missouri Department of Transportation,
Injury No. 08-096413
FACTS:
In 2007, the claimant responded to an accident where a delivery
truck driver lost control of his vehicle and was ejected from the
truck. She and her crew were called out because there was orange
juice, sour cream, and cottage cheese all over the highway. While
walking near the scene of the accident, the claimant stepped on the
victim’s teeth.
The
claimant observed approximately 1,000 accident scenes during the
course of her career with Employer. No party disputed the actual work
events which occurred during her 20-year career as a highway worker.
Eventually, the claimant began to suffer considerable psychiatric
symptoms.
In
September 2017, the Supreme Court of Missouri issued its opinion in
the case which remanded the matter to the Commission for review of
the objective standard for proof of extraordinary and unusual
work-related stress. In December 2017, the Commission granted the
claimant’s request to submit additional evidence and remanded
the matter to the Division. In 2023, the ALJ conducted the remand
Hearing and each party submitted one deposition exhibit.
HOLDING:
After its review, the Commission found that based on the credible
testimony of the claimant’s coworker, a former Department of
Transportation maintenance superintendent, that the claimant
responded to a substantially greater than average number of unusually
disturbing accidents involving fatalities during her 20-year career
as a highway worker. They found that the actual work events as
credibly described by the claimant were so shocking that they would
cause a reasonable highway worker extraordinary and unusual
work-related stress.
Employer’s
chief safety officer testified that highway workers commonly witness
vehicle accidents and experience unpleasantness while at work.
However, this does not address the inquiry required by Section
287.120, which is whether the actual events the claimant
experienced were such that a reasonable highway worker would
experience extraordinary and unusual stress. While commendable,
Employer’s ongoing provision of training and resources to help
employees cope with stressful events, this was irrelevant to the
Commission’s determination that actual work events the claimant
experienced would have caused unusual and extraordinary stress to a
reasonable highway worker.
The
Commission concluded that the claimant met her burden, and the
Employer was responsible for PPD and future medical treatment.
Evidence
of Extraordinary and Unusual Stress Must Meet Required Objective
Standard
Boyer v. Taney County Animal Control, Injury No.
21-090237
FACTS: The claimant worked as a kennel technician for
Employer. On December 3, 2021, while
performing
her work duties, a dog growled when the door opened and jumped up and
knocked down a coworker onto her back. The dog then started “eating”
at the coworker’s arms. As a result of this incident, the
claimant alleged mental injury and PTSD.
A
coworker, also a kennel technician, testified on the claimant’s
behalf. While the coworker testified that the December 3, 2021 event
played a role in her decision to quit her job, she acknowledged that
there were a lot of other reasons for quitting. She did not testify
whether she had previously witnessed animal attacks in the kennel.
With respect to the events on December 3, 2021, the coworker
testified that the event was a horrific scene in her mind and the
attack caused her extraordinary and unusual stress.
The
ALJ denied the claim against the Employer/Insurer.
HOLDING:
The Commission stated, under Mantia, the objective standard
for determining whether a claimant’s stress was compensable is
whether the same or similar actual work events would cause a
reasonable kennel technician extraordinary or unusual stress. The
claimant did not present credible and persuasive evidence to meet
that standard. To meet the objective standard, the claimant could
have presented the testimony of a kennel technician “as to the
circumstances that are experienced as part of the job in general”
but the coworker’s individualized, subjective reactions to
those circumstances were irrelevant.
The
Commission concluded that there was no credible, persuasive and
objective evidence that the same or similar actual events the
claimant witnessed at work on December 3, 2021 would cause a
reasonable kennel technician extraordinary and unusual stress. The
Commission affirmed the Judge’s Award.
Medical
Evidence in PTD Cases Must Be Credible and Persuasive
Locascio
v. Groendyke Transport, Inc. and Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No. 14-104642
FACTS:
On July 3, 2014, while working as a fuel tank driver, the
claimant sustained an injury to his left shoulder. He subsequently
underwent three surgeries for a rotator cuff tear. At trial, no party
disputed that he was PTD. The Judge concluded that the most credible
and competent evidence in the record demonstrated that his PTD is
solely due to his July 3, 2014 work injury. The Employer/Insurer
appealed.
HOLDING:
The Commission noted that no medical expert found the claimant was
PTD solely as a result of the primary injury until Dr. Stuckmeyer’s
December 28, 2020 report, more than six years after his July 3, 2014
injury. The doctor wrote three earlier reports and in each of those
concluded that the claimant was PTD as a result of the combination of
significant preexisting disabilities together with the disability
from the primary 2014 work injury. In the context of his three
earlier reports, the Commission found Dr. Stuckmeyer’s December
28, 2020, revised “alternate” PTD causation opinion
neither persuasive nor credible.
The
Commission further noted that vocational expert Mr. Dreiling’s
original November 22, 2016 opinion that Employee was PTD based on a
combination of the preexisting disabilities along with the primary
injury to be credible and persuasive. However, the vocational
expert’s subsequent deposition testimony was tainted by the
claimant’s attorney’s admission on the record that the
new case law had prompted counsel to go in a different analytical
direction. Also, the Commission was not persuaded by Mr. Cordray’s
position that the claimant could not compete for employment in the
open labor market due to “life factors” unrelated to the
primary injury.
The
Commission noted that no expert opined that the claimant’s PTD
was attributable to a combination of one or more qualified
preexisting disability and disability from the primary injury.
Therefore, the Commission concluded that the Fund had no liability
and modified the ALJ’s Award regarding Employer’s
liability and awarded the claimant 35% of the left shoulder for
permanent partial disability benefits.
Evidence
Must Be Convincing that Claimant’s Combination of Qualifying
Preexisting Disability and Primary Injury Rendered Claimant PTD
Casey
v. Missouri State Treasurer as Custodian of the Second Injury Fund,
Case No. SD38016 (Mo. App. 2024)
FACTS:
In 2016, the claimant sustained an occupational disease to his
bilateral upper extremities, the “primary injury”. He
settled the claim with his Employer for stipulated disabilities of
15% of each wrist and 15% of each elbow. He had previously settled a
2006 claim with the Employer for 10% of the right knee and a 2012
claim for 10% of the left wrist, 20% of the left knee, and 22.5% of
the left ankle.
The
claimant presented testimony from Dr. Volarich, who opined that the
claimant was PTD as a result of the work-related injury leading up to
June 20, 2016 in combination with his preexisting medical conditions.
Ms. Shea agreed.
At
the Hearing, the ALJ found the Fund liable for benefits. The Fund
appealed. The Commission reversed and the claimant appealed asserting
that the Commission erred in denying PTD in failing to consider the
claimant’s experts’ opinions that his previous right knee
disability was sufficient to meet the 50-week threshold requirement
and combined with his primary injury to render Claimant PTD.
HOLDING:
The Court noted that the claimant bears the burden of proving all
elements of his claim. This includes not only establishing a prima
facie case, “but convincing the fact-finder to view the
facts as needed for Claimant to win.”
In
its Final Award Denying Compensation, the Commission found that the
credible, persuasive evidence demonstrated that the claimant had
32.5% PPD of the right knee (52 weeks) preexisting the 2016 primary
injury. As that finding met the 50-week threshold required by Section
287.220.3, the question of whether the claimant could combine
multiple preexisting disabilities to meet that 50-week requirement is
moot.
The
Court noted that Dr. Volarich and Ms. Shea both opined that the
claimant was PTD as a result of the primary injury and his
preexisting conditions. Dr. Volarich opined that Claimant was PTD “as
a direct result of the work-related injury leading up to June 20,
2016 in combination with his preexisting medical
conditions.” Ms. Shea similarly opined that Claimant’s
“inability to be employed is the result of the primary
work-related injury and preexisting injuries and conditions.”
The
Commission’s resolution of the credibility and weight of
conflicting testimony is within the sole purview of the Commission.
Because
the claimant failed to convince the Commission that the combination
of the claimant’s qualifying preexisting right-knee disability
and the primary injury rendered the claimant PTD, the Court affirmed
the Commission’s Final Award Denying Compensation.
Occupational
Diseases Are Compensable Pre-Existing “Injuries” As
Defined by Statute to Trigger SIF Liability for PTD
Treasurer
of the State of Missouri-Custodian of Second Injury Fund v. Penney,
Case No. WD86684 (Mo. App. 2024)
FACTS:
The claimant had two prior work-related occupational disease injury
claims. In June 2018, she underwent two surgeries for her low back
including multi-level decompression and fusion. She settled for 12.5%
PPD of the body. In February 2019 she sustained an occupational
disease to her neck and upper back with protruding discs, but she
declined surgery. The claim settled for 12.5% PPD of the body.
Her
primary claim was a new work-related occupational disease in March
2019 for her bilateral upper extremities including right carpal
tunnel and left ulnar nerve entrapment and underwent surgery.
Her
physician opined that her work was the prevailing factor causing the
March 2019 occupational diseases to her bilateral upper extremities.
He also opined that claimant’s PTD flowed from the synergism of
the global combination of disabilities from each of the occupational
disease claims to the low back, cervicothoracic region, and both
upper extremities. He further believed that the disability flowing
from the 2018 and the February 2019 occupational disease injury
claims would qualify under Section 287.220.3 to trigger Fund
liability.
At
trial, the ALJ found claimant’s expert opinions unrefuted and
credible and concluded that claimant was PTD as a result of the
combined effect of her disabilities and entitled to PTD benefits from
the SIF. On appeal, the Commission affirmed the ALJ’s Award.
HOLDING:
The Fund appealed, contending that the Commission misapplied Section
287.220.3 (2)(a)a(ii) by failing to strictly construe the statute
when allowing preexisting compensable occupational diseases to
satisfy category two, arguing that the plain text of category two
excludes compensable occupational diseases by referencing Section
287.020, which outlines the compensability standards for accidents,
and not Section 287.067, which outlines the compensability standards
for occupational diseases. One statute excluded any occupational
diseases except for otherwise provided under the statute, and another
statute provided that an occupational disease is a compensable
injury.
The
Court found that the Commission did not misapply Section
287.220.3(2)(a)a(ii) or fail to strictly construe the statute when
allowing preexisting compensable occupational diseases to satisfy
category two, in that Section 287.020’s definition of “injury”
encompasses occupational diseases provided in Chapter 287, as Section
287.067 of Chapter 287 defines compensable occupational diseases.
Therefore, the Commission’s Award was affirmed.
Claimant Must Show Preexisting Disability Reaches Necessary
Threshold for SIF Liability
for PTD
Carroll v. Treasurer of Missouri as Custodian of Second Injury
Fund, Injury No. 21-058799
FACTS:
On June 12, 2023, the claimant settled the primary claim for the
May 31, 2021 date of injury against Employer/Insurer for 17.5% PPD of
each wrist. Also on June 12, 2023, the claimant settled his prior
claim against Employer/Insurer for 25% PPD of the right knee
and 16% PPD of the left knee for injuries suffered on or about
October 31, 2020.
The
claimant’s settlements with Employer/Insurer were on a disputed
basis, as indicated by the language of each Stipulation. The
bilateral knee injuries were due to occupational diseases, as found
by the ALJ based on the entire record and the testimony of Dr.
Volarich. At trial, the Judge denied PTD benefits against the Fund.
The claimant appealed to the Commission.
HOLDING:
The Commission affirmed the Award and Decision of the ALJ. Because
the primary injury occurred after January 1, 2014, the criteria set
forth under Section 287.220.3(2) RSMo applied to
establish a compensable claim against the Fund. Under Section
287.220.3, claimants must meet two conditions to make a compensable
PTD claim against the Fund. Under the first condition, the claimant
must have at least one qualifying preexisting disability, which must
be medically documented, equal to at least 50 weeks of PPD, and meet
one of the four listed criteria in Section 287.220.3(2)(a)a(i)-(iv).
Nonqualifying preexisting disabilities cannot be considered. The
Commission noted that Missouri courts have held that while a
settlement with the Employer does not bind an ALJ or the Commission,
it “does serve as relevant evidence of the nature and extent of
Employee’s permanent partial disability attributable to the
primary injury.”
In
this case, based on the credible and persuasive evidence presented,
including the settlement agreement between the claimant and
Employer/Insurer, the Commission found the claimant sustained 17.5%
PPD of each wrist as a result of the May 31, 2021 primary injury and
preexisting disability of 25% PPD of the right knee and 16% PPD of
the left knee. They did not find Dr. Volarich’s description of
the claimant’s present complaints or PPD rating to be credible
and persuasive, as it far exceeded the amount of PPD agreed upon by
the claimant and Employer/Insurer. The Commission was more persuaded
by the evidence of disability agreed to by the claimant and
Employer/Insurer. They were not persuaded that the disputed nature of
the claim was a compelling reason to deviate from the below-threshold
PPD agreed to in the settlement just three months before the Final
Hearing was held.
Because
the claimant failed to demonstrate any pre-existing disability met
the 50-week threshold, his claim for PTD failed. The Commission noted
that while the preexisting bilateral knee injuries were compensable
as occupational disease claims, the finding is moot as they found the
claimant failed to meet his burden of proof and persuasion that
either knee met the 50-week threshold to trigger Fund liability. The
Commission affirmed the Judge’s Award regarding the absence of
Fund liability.
Untimely
Notice of Appeal Dismissed
Godfrey
v. Metropolitan St. Louis Sewer District, Case No.
ED111833 (Mo. App. 2024)
FACTS:
On January 11, 2023, the Division entered an order dismissing the
claimant’s claim with prejudice for failure to prosecute,
finding “Claimant did not show good cause why [her] claim
should not be dismissed”. Eight days later, on January 19,
2023, she filed a timely Application for Review with the Commission
asserting her claim should not have been dismissed because there were
alleged irregularities.
On
May 24, 2023, the Commission entered its Decision affirming the
Division’s Dismissal. On June 13, 2023, the claimant filed a
Motion for Reconsideration with the Commission asserting her claim
should not have been dismissed because: (1) there were alleged
irregularities with the Division’s December 2022 Notice and the
January 2023 Hearing Notice; and (2) Chapter 287 does not support a
finding that she failed to prosecute her claim.
On
June 22, 2023, the Commission entered an Order denying her Motion for
Reconsideration. The claimant then filed her Notice of Appeal with
the Commission on June 26, 2023, asserting she was appealing the
Commission’s May 24, 2023 Decision affirming the Decision of
the Division. Thereafter, Employer filed a Motion to Dismiss the
claimant’s appeal on the grounds that the Court lacked
appellate jurisdiction because the claimant’s Notice of Appeal
was untimely pursuant to Section 287.495.1.
HOLDING:
Before the Court could consider the merits of the claimant’s
points on appeal, the Court had to determine whether the Employer’s
motion was dispositive.
Section
287.495.1 provides a notice of appeal in a workers’
compensation case must be filed with the Commission within thirty
days from date of the Commission’s Final Award. In this case,
the Commission’s May 24, 2023 decision Affirming the Decision
of the Division was a Final Award.
Although
the claimant filed a Motion for Reconsideration after the
Commission’s May 24, 2023 decision, her filing of the Motion
did not extend the aforementioned statutory deadline for filing the
Notice of Appeal under the circumstances of the case.
Employer’s
Motion requested dismissal of the claimant’s appeal, asserting
that the Court lacked appellate jurisdiction. Employer’s motion
argued the claimant failed to file a timely notice of appeal as to
the Commission’s May 24, 2023 Decision and that the Claimant’s
motion for reconsideration did not extend the deadline for filing the
Notice of Appeal. For that reason, the Court found that the
Employer’s argument had merit and dismissed the claimant’s
appeal for lack of jurisdiction.
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