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Claimant
Awarded a Load on Unoperated Bilateral Shoulder Claim
Ferris
v. Pajco Inc. d/b/a Rhodes and Zurich American Insurance Co,
Injury No: 20-046178
FACTS:
On or about June 4, 2020, the claimant sustained an injury to his
bilateral shoulders while attempting to pull a 50-foot hose that was
full of fuel across the grass. The case was accepted as compensable
and the claimant was sent to Dr. Kostman at the employee’s
request, who performed prior surgeries to the claimant’s
shoulders, on the right in 2005 and on the left in 2009. Dr. Kostman
diagnosed bilateral shoulder strains and recommended conservative
treatment including physical therapy and a selective injection to
each shoulder along with the anti-inflammatories. The doctor placed
him at MMI on February 24, 2021and assessed 0% disability to each
shoulder.
The
claimant’s attorney obtained a report of Dr. Volarich, who
assessed 25% disability to each shoulder as a result of the work
accident.
The
only dispute was the nature and extent of PPD. The judge assessed 10%
to each shoulder along with a 10% load. The decision was appealed and
the Commission affirmed.
Amputation
Not Compensable as Work Accident Was Only a Triggering or
Precipitating Factor in Causing Claimant’s Medical Condition
and Disability
Hasselbring
v. Macon County Nursing Home District and Treasurer of Missouri as
Custodian of Second Injury Fund,
Case No. WD87278 (Mo. App. 2025)
FACTS:
In mid-2021, the
claimant, who worked at a nursing home, began noticing pain in his
left calf when he would walk long distances. In August 2021, after
mentioning his pain to his cardiologist, the claimant was sent for a
CT scan and a vascular surgeon told him he had a closed popliteal
aneurysm in his leg, and because the aneurysm had completely closed
off the condition was not acute, and the claimant developed some
collateral blood flow to his foot. The doctor recommended that he
undergo vein mapping and likely a vein bypass but did not insist that
he do so immediately.
Then
on November 3, 2021, the claimant was helping a resident out of a
vehicle and the resident rolled her electric wheelchair over the
claimant’s left foot. He immediately felt sharp pain going all
the way down his left leg into his foot. The claimant went home and
his wife looked at his foot and kept saying that his foot was white,
which meant that he did not have any circulation, and she took him to
the emergency room. At the hospital, the doctor noted that the
claimant had acute ischemia and performed surgery to do everything
possible to save his leg, but his left leg was amputated above the
knee two days after the work accident. Thereafter, he was unable to
return to work, had to use a wheelchair and was learning to use a
prosthesis. The claimant took the matter to a hearing and the ALJ
awarded benefits. The employer appealed to the Commission and
reversed the Award, finding the employer’s expert credible,
stating that the prevailing factor in the claimant’s loss of
limb was an occluded left large popliteal artery aneurysm. The
Commission found that the work accident was “merely a
triggering or precipitating factor in causing employee’s
medical condition and disability.” The claimant appealed.
HOLDING:
The Court noted
that an injury by accident is compensable only if the accident was
the prevailing factor in causing both the resulting medical condition
and disability. The Court noted that while both the treating
physician and the employer’s expert agreed that the wheelchair
accident was the prevailing factor of the “crush injury”
to the claimant’s left foot, the employer’s expert, whose
opinion the Commission found more credible, did not conclude that the
crush injury was the prevailing factor in causing the claimant’s
disability. The expert testified that absent the claimant’s
preexisting popliteal aneurysm, the crush injury or soft tissue
damage would have been a benign event which would have been treated
with leg elevation, ice and anti-inflammatories. In other words, the
soft tissue injury would not have resulted in disability. In light of
this, the Commission’s denial of benefits was affirmed.
Occupational
Diseases Are Not Compensable Pre-existing Injuries That Trigger Fund
Liability
Treasurer
of the State of Missouri Custodian of the Second Injury Fund v.
Penney, Case
No. SC100693 (S. Ct. 2025)
FACTS:
The claimant worked as
a pharmacy technician from 1980 to 2019. In June of 2018, the
claimant filed an occupational disease claim involving her low back.
In February 2019, she filed another occupational disease claim
involving her neck and upper back. In March 2019, the claimant filed
her final occupational disease claim involving right carpal tunnel
syndrome and ulnar nerve entrapment at the elbow on the left side.
The claimant sought PTD benefits from the Fund. At a hearing, the ALJ
concluded the claimant was permanently and totally disabled and
determined that the Fund was responsible for benefits. The Fund
appealed, arguing that the ALJ improperly considered the claimant’s
preexisting occupational diseases as they are not compensable
injuries pursuant to the statute. The Commission disagreed and
affirmed the ALJ’s award of PTD. The Fund appealed.
HOLDING:
The claimant alleged that her occupational diseases were a “direct
result of the compensable injury as defined in Section 287.020.”
The Fund argued that occupational diseases do not qualify under that
subsection. The Court noted that there are two types of compensable
injuries, injuries by accident and injuries by occupational disease.
The Court noted that while occupational diseases are “compensable”
under Section 287.067, the legislature chose to limit preexisting
injuries that qualify under Category 2 to compensable injuries as
defined in Section 287.020, the section pertaining to injuries
sustained by accident. Therefore, the Commission’s decision was
reversed and the claimant was not entitled to benefits from the Fund.
White
v. Treasurer of the State of Missouri as Custodian of the Second
Injury Fund, Case No. ED113099, Mo. App ED 2025
FACTS:
In 2020 the claimant injured his chest while working on an overhead
load spring on an industrial vacuum truck. He settled his chest
injury for 12.5% disability. He had various preexisting conditions
but relevant here was his October 2010 occupational disease claim
involving his bilateral shoulders. He settled that claim for 23% of
each shoulder or 106.72 weeks total. The ALJ determined that the Fund
was liable for benefits based on his 2010 shoulder injury and the
2020 chest injury. The Fund appealed arguing that the claimant’s
preexisting occupational disease claims did not qualify under the
statute as occupational disease claims are not a compensable injury.
The Commission affirmed the ALJ’s Award. The Fund appealed.
HOLDING:
The Court noted that while this case was under appeal, the Supreme
Court decided that occupational diseases are not compensable to
trigger Fund liability and therefore are not covered by the Second
Injury Fund. In light of this decision, the Commission’s
decision was remanded for the Commission to consider whether the Fund
had any liability as a result of any other qualifying preexisting
disabilities.
All
Pre-existing Disabilities Must Meet 50-Week Threshold for Fund
Liability
Jarvis
v. Treasurer of the State of Missouri as Custodian of the Second
Injury Fund, Case
No. ED113075 (Mo. App. 2025)
FACTS:
The claimant worked as an iron worker and sustained multiple injuries
throughout his employment. In 2001 the claimant sustained injuries to
his right ankle and both arms and settled his claim for 57.75 weeks
for the right elbow, 43.75 weeks for the left wrist, and 46.5 weeks
for the right leg. He was awarded a 10% load and 21 weeks of
disfigurement. In 2011 he sustained an injury to his right wrist and
settled that claim for 20% disability. In 2015 he sustained his
primary injury involving his bilateral legs and reached a settlement
with the employer and proceeded with a Hearing against the Fund.
The
claimant’s attorney obtained a report of Dr. Volarich who
assessed disability with respect to the primary and preexisting
conditions and opined that he was likely permanently and totally
disabled as a result of the 2001 and 2015 injuries. He also obtained
a vocational report of Mr. Lalk who ultimately concluded that if the
claimant needed to elevate his leg as a result of the primary injury
he would PTD as a result of the last injury alone. At a Hearing the
ALJ determined that as a result of the 2001 injury the claimant
sustained 57.5 weeks disability to the right elbow, 54.25 weeks for
the right left and 43.75 weeks for the left wrist. The ALJ found the
claimant failed to prove that he was entitled to benefits against the
Fund as the left wrist injury did not meet the 50-week threshold. The
claimant appealed and the Commission affirmed the ALJ’s
decision denying benefits. The claimant again appealed.
HOLDING:
The Court noted that it has been reiterated by the Supreme Court that
a claimant may not rely on a non-qualifying preexisting disability to
prove that he or she is PTD. The Court went on to note that Dr.
Volarich’s PTD determination was based on the claimant’s
primary injury combining with all three of his preexisting
disabilities and since one of those was not worth 50 weeks, the
claimant is not eligible for Fund benefits. The Commission’s
decision was affirmed.
All
Pre-existing Disabilities Must Meet 50-Week Threshold for Fund
Liability; Load Factors Do Not Apply
Eckardt
v. Treasurer of Missouri as Custodian of the Second Injury Fund,
Case No. SC100784 (S. Ct. 2025)
FACTS:
The claimant worked as an aircraft mechanic in 1976. He sustained
multiple injuries over the years, the last or primary injury in
October of 2015 which resulted in a spinal fusion. He retired as he
could no longer perform his job. The claimant sought disability
benefits from the Fund and the ALJ found the following preexisting
permanent partial disabilities: right knee, 80 weeks; left knee, 80
weeks; left shoulder, 92.8 weeks; left wrist, 78.75 weeks; right
wrist, 70 weeks; and right shoulder, 46.4 weeks. The claimant’s
attorney presented three reports and in the last report the doctor
stated that the claimant was PTD due to the primary injury in
combination with all six of his preexisting disabilities. The ALJ
acknowledged that the right shoulder injury did not reach the
statutory threshold of 50 weeks, but found the doctor’s
reliance on that injury “not significant when considering all
of the qualifying preexisting injuries.” The ALJ did believe
the claimant was PTD and the Fund was responsible for benefits. The
Fund appealed, arguing that occupational diseases do not qualify and
that the claimant’s right shoulder injury did not qualify.
The
Commission reversed the ALJ’s award and denied the claim. The
claimant appealed, arguing that the Commission misconstrued the
evidence by finding the doctor relied on a non-qualifying right
shoulder injury and in the alternative argued that a load factor
should apply to enhance the amount of PPD attributed to his right
shoulder injury, pushing it over the 50-week statutory threshold.
HOLDING:
The Court disagreed
with the claimant’s argument that a load factor is appropriate,
as they noted that as of January 1, 2014, the legislature eliminated
claims for PPD and in doing so also eliminated the load factor
analysis. The Court went on to further note that nothing in the
statute permits or even suggests a load factor may be applied to
increase the amount of PPD attributed to a preexisting disability.
Therefore, the Court rejected the argument that a load factor should
apply. Also since the doctor’s opinion with respect to perm
total disability included the claimant’s non-qualifying right
shoulder injury, the claimant did not meet his burden in establishing
Fund liability. The Commission’s decision was affirmed.
Pre-existing
Condition Must Be Medically Documented but Documentation of Medical
Condition and Rating for That Condition Can Come From Different
Sources
Wetzel
vs. Treasurer of Missouri as Custodian of the Second Injury Fund,
Case No.
WD87372 (Mo. App. 2025)
FACTS:
The claimant sustained
his primary injury on March 23, 2018 which involved a crush injury to
both legs which required surgery. Thereafter he never returned to
work. He settled his case against the employer for 33.5% PPD to his
left and right lower legs at the 160-week level. He proceeded to a
Hearing against the Fund for PTD benefits based on a 1989 work
injury. At the Hearing he testified that he suffered compression
fractures to his spine at L1, L2, and L3 and following that accident
he settled his case for 17.5% disability to the body referable to the
low back. The Stipulation was admitted into evidence. He testified
that he continued to suffer back pain, and he visited an orthopedics
practice in September and October of 2017 to seek treatment for his
low back. He did admit those records into evidence at the Hearing.
The Fund objected to admission of those records, but it was overruled
by the ALJ. The records included a summary of the claimant’s
description of his 1989 low back workplace injury, the reported
lingering effects of that injury, and treatment he reported receiving
since that time. Also, it included a physical examination, x-ray, and
MRI imaging which showed that the claimant did have chronic vertebral
compression fractures along with moderate degenerative disc disease
and other degenerative conditions. At these 2017 visits, physical
therapy was recommended along with medications. The ALJ concluded
that the Second Injury Fund was liable for perm total benefits. The
Second Injury Fund appealed arguing that the claimant’s
self-reported history communicated to doctors to support the low back
disability related to the 1989 prior work injury did not establish
that the claimant’s low back disability was “medically
documented” as to qualify as a preexisting disability. The
Commission agreed and reversed the decision of the ALJ. The claimant
appealed.
HOLDING:
The claimant argued that the medical records from September and
October from 2017 contained much more than unsupported statements of
preexisting disability in that it provided clear and undisputed
evidence of the claimant’s preexisting back injury, including
diagnosis and treatment and the court agreed. The Fund argued that
this case was similar to Dubuc,
and it was determined
in that case that the claimant’s own statements about his prior
hernias although recorded by doctors and medical records do not
conclusively support that any doctors have medically documented the
claimant’s preexisting condition. However, the Court
distinguished this case noting that the statute nor Dubuc
prohibit a doctor from providing a competent and admissible
disability rating for self-reported preexisting disability without
having reviewed medical documentation of that disability. Instead, as
long as there is medical documentation of a preexisting disability
and a disability rating for the same preexisting disability equaling
50 weeks or more, it is immaterial that the evidence comes from
different sources. The Court went on to note that the records clearly
document the claimant’s report of a prior back injury and there
was also medical documentation of fractures including a physical exam
and diagnostic testing and therefore the medical records qualify as
medical documentation of the claimant’s preexisting low back
injury. Therefore, it was determined that the claimant was PTD, and
the Fund was liable for benefits.
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