WORKERS’ COMPENSATION CASE LAW UPDATE

JULY 2010-SEPTEMBER 2010

Medical Causation - Cardiovascular Diseases Top

Alan Leake, deceased, Linda Leake, v. City of Fulton, Case No. WD71821 (Mo. App. W.D. 2010)

FACTS: The claimant was a captain for the Fulton Fire department for 20 years who died from a ventricular fibrillation while responding to a car accident.  On April 30, 2006 the claimant responded to a three car automobile accident and had to help push a vehicle to the side of the road.  During this time, it began to rain and hail heavily.  The claimant then immediately responded to another accident which required him to climb down a steep embankment and perform CPR.  He then helped carry the man up the steep embankment.  By this time, the sun had come out and the air was hot and humid. 

The city presented the opinion of Dr. Kennett who testified that the prevailing cause of the claimant's death was underlying cardiovascular disease. The claimant's expert, Dr. Schuman, acknowledged the underlying cardiovascular disease, but noted the claimant was asymptomatic and had never been diagnosed before the work accident.  He opined that the extreme conditions including the physical exertion in hot humid weather created increased demand on the cardiovascular system.  Since the claimant had some blockage, this created electrical instability and the ventricular fibrillation. 

The Commission determined that the rescue effort was especially difficult because of the large size of the driver, the fact that the driver's airway and the breathing device for CPR were obstructed with vomit, the position of the driver, the wet, slippery conditions and the hot humid weather.  The claimant was wearing his large rubber boots, insulated pants, a heavy insulated coat and a helmet. The Commission determined the claimant's expert was more credible and found the work accident to be the prevailing cause of the claimant's death. (See our October-December 2009 Quarterly for a discussion on the Commission decision).

HOLDING: The Court of Appeals agreed with the Commission and held that, where a pre-existing cardiovascular condition and a work related activity contribute to cause an employee's injury, whether either is the prevailing factor is a question of fact.  Underlying cardiovascular disease does not always preclude recovery because 287.020.3(4) recognizes that a cardiovascular disease can constitute an injury if the accident is the prevailing factor of the medical condition.  Here, the Commission fully considered both expert opinions and its decision was supported by competent and substantial evidence.

 

Medical Causation - Risk of Prolonged Walking Related to Employment Top

Denise Pile v. Lake Regional Health Systems and Missouri Employers Mutual Insurance, Case No. SD30153 (Mo. App. 2010)

FACTS: The claimant was a supervising nurse who injured her ankle when she was walking quickly to get a patient medicine.  When she turned the corner, she stumbled and turned her ankle causing a number of small fractures in her foot. 

The claimant testified that she was on her feet for 80% of her 12 hour shifts at work, but only on her feet 50% of the time at home.  The claimant's expert opined that the claimant had developed chronic tendinitis and calcification from prolonged walking which could have caused the bones in her foot to break.

The Commission determined that the accident came from a hazard or risk to which the claimant would have been exposed to outside of work.  The Commission found that the claimant suffered no "more than a pedestrian stumble that could have happened anywhere, anytime, and to any person." The Claimant appealed, arguing that the prolonged walking at work was the prevailing cause of her condition.

HOLDING:  The Court of Appeals noted that the Commission erred because they used the improper standard when they omitted the word "equally" in the phrase "equally exposed." The Court differentiated Miller v. Missouri Highway and Trans. Com'n by holding that the risk the claimant faced was not merely walking, but prolonged walking at work.  The case was sent back to the Commission for a determination of the claimant's benefits.

 

Permanent Total Disability Top

Kenneth Tilley v. USF Holland Inc. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED94431 (Mo. App. 2010)

FACTS: In this old law case, the claimant was a 58 year old employee who felt a pop in his back and hip while unloading canvas rolls from his truck.  He subsequently underwent an authorized diskectomy as well as an unauthorized fusion.  The claimant's doctors and vocational expert testified that he was permanently and totally disabled as a result of the accident. 

The employer's vocational expert testified that the claimant was employable on the open labor market.  In addition, the employer argued that the claimant was not eligible for PTD benefits because he had been offered potential employment within his restrictions and had chosen not to accept it.  The claimant testified that he could not remember a job offer for in home computer work and testified that he did not own a computer or have internet access at his home.

The Commission determined that the testimony of the claimant and the claimant's experts was more credible and awarded PTD benefits.  The Commission also determined that the benefits would last for the life of the claimant and his wife under Schoemehl.  The employer appealed.

HOLDING: The Court of Appeals determined that the Commission's decision was supported by the evidence.  In addition, the Court agreed that the claimant's wife would be entitled to a continuation of PTD benefits for her life because the claim was pending between the time Schoemehl was decided and the time it was overturned by the amendments to the statute.

 

Medical Causation Top

Larry Daly v. Powell Distributing, Inc. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case Nos. WD71575 and WD71576 (Mo. App. 2010)

FACTS: In this old law case, the claimant worked as a truck driver for a distributor company and would deliver anywhere between 300 and 400 cases of soda per day. This would require him to work overhead and step on and off his truck with cases of soda. The claimant suffered an injury to his low back that was found to be compensable. The claimant underwent surgery in May 2000 for the low back and never returned to his job with the employer.

The claimant alleged that in addition to his low back injury, he also suffered an injury to his neck and right arm. However, the claimant alleged that these injuries did not become symptomatic until he started physical therapy for the low back. Finally, the claimant testified that he suffered a hernia while undergoing work hardening for the low back injury.

The Commission determined that the neck, right arm and hernia injuries were not compensable because there was no credible medical evidence that linked those injuries to the claimant's employment. The Commission determined that the employer's expert did not have the adequate background to evaluate the claimant and also determined that the claimant's expert was not credible because the medical records did not indicate a connection between the injuries and the claimant's work. The Commission called the claimant's expert's conclusion a "leap of faith." The claimant then appealed.

HOLDING: The Court of Appeals reversed the Commission decision because it was not supported by the record. While the medical records did not discuss the cause of the claimant's neck, right arm and hernia conditions, the claimant's medical expert did testify about the causal connection. Since the medical records did not discuss causation, and the employer's expert was not credible, nothing contradicted the claimant's expert's testimony and their opinion was sufficient to make out causation. The Court of Appeals sent the case back to the Commission to determine what benefits the claimant should receive.

 

Substantial and Competent Evidence Top

Dennis Payne, v. Thompson Sales Company, Missouri Automobile Dealers Association and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD30132 (Mo. App. 2010)

FACTS: Claimant alleged that he suffered a neck injury while shoveling snow at work in November 2006. The Commission determined that the claimant was not lying when he testified he thought the ruptured disc was caused by the shoveling incident. However, the Commission determined that the claimant's condition was not work related because he did not immediately seek treatment, continued to work for 6 weeks after the alleged injury, did not make any complaints of continued pain, did not ask for medical assistance and sought no job accommodations. In addition, the claimant had a prior cervical neck surgery which the claimant's own expert testified would have made the neck weaker.

The claimant appealed, arguing that the Commission decision was not based on competent and substantial evidence.

HOLDING: "Competent and substantial evidence" is admissible evidence, to the extent taken as true, tending to prove or disprove an issue. The Commission found the employer's expert to be more credible than the claimant's expert.  Therefore, the Commission's decision was based on competent and substantial evidence. The claimant's real complaint was about the quality of the evidence, but the Court of Appeals would not overrule the Commission's decision regarding the weight of evidence or credibility.

 

Household Servants Excluded from Coverage Top

Noneeka Massey v. Marsha and Frank Spasser, Case No. ED94060 (Mo. App. E.D. 2010)

FACTS:  The claimant was hired by Marsha and Frank Spasser to take care of Mr. Spasser who was sick and confined to the Spasser's home.  Her job duties consisted of feeding, clothing, transferring Mr. Spasser from bed to chair, providing skin care to prevent bed sores, providing bathroom assistance and seeking emergency care if necessary.  The claimant did not have any job duties that involved cleaning the house, shopping, cooking or doing laundry.

The claimant injured her back while transferring Mr. Massey from his wheelchair to a recliner and filed a workers' compensation claim.  The Massey's argued that the claimant was not eligible for benefits because she was a domestic servant and was excluded from coverage under 287.090.1.  The Commission determined that the claimant was not a domestic servant because she was hired to do nursing work. (See our October-December 2009 Quarterly for a discussion on the Commission decision).

HOLDING: The Court of Appeals stated that a "servant" is one employed by another to do work under the control and direction of the employer, and the claimant was under the control and direction of the Massey's.  Strictly construed, the statute was not intended to apply to work done in private homes for members of private households.  Therefore, the claimant was not entitled to workers' compensation benefits.         

 

No Co-Worker Immunity Top

Richard Robinson, et al.,  v. Cheryl Hooker, Case No. WD71207 (Mo. App. 2010)

FACTS: Mr. Robinson was injured when his co-worker, Cheryl Hooker, lost control of a high pressure hose and he was struck in the eye, causing blindness.  He settled his workers' compensation claim with his employer, the City of Kansas City.  Mr. Robinson then sued his co-worker for negligence in a civil lawsuit.  Ms. Hooker filed a motion to dismiss because the Division of Workers' Compensation had exclusive jurisdiction and that she had co-worker immunity.  The Court granted the motion and Mr. Robinson appealed.

On appeal, Mr. Robinson argued that under strict construction, the workers' compensation statute grants the employer immunity from civil claims, but not co-employees.  The act also allows for civil claims against third parties not covered by the act.

HOLDING: The court noted that co-worker immunity had been a judicial construction that was based on the liberal interpretation of the statute before the 2005 amendments.  The statute defined employer and did not include co-employees in that definition.  Therefore, Ms. Hooker did not have immunity under the new workers' compensation statute and could be sued in civil court.  The court also determined that res judicata did not bar Mr. Robinson's claims, because negligence is a different cause of action.

Note: The holding of this case means that in addition to a workers' compensation claim, injured employees can now sue a co-worker if that co-worker's negligence was the cause of the injury.

 

Exclusivity of Workers' Compensation Division Affirmative Defense Top

State of Missouri ex rel. Dolgen Corp., Inc., d/b/a Dollar General Stores, Relator v. The Honorable Shephen R. Sharp, Respondent and City of Campbell, Missouri and William "Buck" Riley, Defendant, Case No. SD29398 (Mo. App. 2010)

FACTS: In this Civil Case, the plaintiff's were the parents of an employee of Dollar General who was assaulted and killed while at work.  They filed a civil lawsuit for wrongful death against many defendants, including the employer.

Employer filed a motion to dismiss for lack of subject matter jurisdiction because the Division of Workers' Compensation had exclusive jurisdiction.  This was denied by the trial judge and the employer filed a motion of prohibition to prevent the trial judge from proceeding with the case.  This was originally granted by the Court of Appeals.

HOLDING: In light of McCracken, the order of prohibition was quashed. Please recall that McCracken stated that the defense of exclusive jurisdiction must be raised as an affirmative defense and not as a motion to dismiss for lack of subject matter jurisdiction. (see October-December 2009 Quarterly)

 

COMMISSION TRENDS Top

OLD LAW (PRE AUGUST 2005)

Over the last three months, the Commission has ruled on 17 old law cases.  The Commission has reversed or modified three cases.

Statute of Limitations for Tinnitus 

In Sharon Lawrence v. Anheuser Busch Companies, Inc., Injury No. 04-146397, the Commission determined tinnitus is compensable as an occupational disease distinctly separate from occupational deafness.  Under Section 287.063.3, the Statute of Limitations for tinnitus does not run until the tinnitus becomes reasonably discoverable and apparent.  The Commission determined that the claimant's tinnitus was reasonably discoverable and apparent in the early 1980's, so the statute of limitations had run before the claimant filed her claim for compensation. 

Permanent and Total Disability Against Employer/Insurer   

In Blaine Lyman v. Allman Construction, LLC, Injury No. 02-049455, the decision of the ALJ was changed regarding Second Injury Fund liability.  The claimant had a pre-existing vision condition along with the work accident to his hip that required numerous surgeries.  The Commission determined the employer's liability must first be considered in isolation, before determining Second Injury Fund liability.  The Commission determined the weight of the evidence supported a finding that the last injury alone rendered the claimant permanently and totally disabled.

PTD and Part-Time Employment

In Stancie Molder v. Bank of America, Injury No. 02-103900, the Commission disagreed with the ALJ determination that the claimant was not permanently and totally disabled.  The Second Injury Fund offered no expert evidence to rebut the claimant's experts.  The ALJ reasoned since the claimant worked part-time, she was able to work in the open labor market and relied on the case of Jason Rector v. Gary Heating and Cooling and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 293 S.W.3d 143 (Mo. Ct. App. S.D. 2009).  The Commission determined the ALJ oversimplified the reasoning in the case of Rector.  In this case, the claimant only worked sporadically and as needed.  The Commission determined the irregular work was not employment in the open labor market.

NEW LAW

The Commission heard appeals on 22 new law cases.  Of those cases, the Commission modified, reversed, or supplemented opinions in four cases.  In three new law cases, the Commission agreed with the ruling of the ALJ.

Dependent's Entitlement to PTD Benefits

In Cheryl Goad (deceased) v. Blue Cross/Blue Shield (settled), Injury No. 07-104044, the claimant suffered a work related injury in 2007, and died from causes unrelated to that injury in 2009.  The employee died after the statutory changes were passed to revoke Schoemehl.  The statutory changes  stated that PTD benefits terminated after the death of the employee and did not pass to the employee's dependents   After the claimant passed away, a trial was held, and PTD benefits were awarded to the employee.  The claimant, as the employee's dependent, argued that she was entitled to lifetime PTD benefits, under Schoemehl.  The Commission concluded that the claimant's rights as a dependent did not vest until the employee died.  Therefore, the permanent and total disability benefits terminated at the time of the death of the employee, and did not pass on to the claimant. 

Penalty Against Employer for Safety Violation

In Terry Hornbeck v. Spectra Painting, Inc., Injury No. 06-124920, the Commission changed the decision of the ALJ regarding the issue of the claimant's entitlement to a 15% enhancement under Section 287.120.4, due to the employer's violation of the scaffolding act.  The ALJ specifically found that the employer did not violate the Scaffolding Act, and did not award the 15% enhancement.  According to Prapuolenis v. Goebel Construction Co., 213 S.W. 792, 795 (Mo. 1919), the fall of the scaffold is prima facia evidence of negligence on the part of the employer and a violation of a statute.  The employer provided no evidence to contradict the claimant's testimony, nor provided any evidence of an exculpatory nature.  Therefore, the Commission did award the 15% enhancement.

Mental Disability

In Sherry Sellars v. Orkin Pest Control, Injury No. 07-042070, the Commission determined that the claimant was permanently and totally disabled as a result of the work accident.  The claimant was involved in a motor vehicle accident resulting in physical trauma and mental disability. The Commission concluded that  in mental disability cases, the ultimate and final analysis must be left to the skill and experience of medical and psychiatric/psychological experts.  The claimant's expert was more credible than the employer's expert, because he performed a battery of tests and utilized the answers in forming his opinion. 

Disability for Non-Visual Disturbances

In David W. Hicks v. St. John Development Corporation, Injury No. 06-061625, the Commission altered the decision of the ALJ regarding the use of Rule 8 CSR 50-5.020.(1)-(8), which sets the procedures for evaluating visual disabilities.  Subsection (9) addresses non-visual occular disturbances.  The claimant sustained an injury to his eyes when paint got in them while working.  The Commission concluded the ALJ mistakenly determined the claimant's condition was symblepharon (a listed non-visual occular disability found in the text of the table following the Rule), despite the lack of evidence to support it.  The Commission relied on Dr. Musich's opinion that the claimant sustained disability of 25% of the body as a whole for the non-visual occular disturbances, since Dr. Pernoud had no ocular impairment on behalf of the employer.  Disability was determined by using Section 287.190.

Course and Scope of Employment

In Norma Williams v. State of Missouri (Cottonwood Treatment Center), Injury No. 07-078489, the Commission agreed with the decision of the ALJ regarding an injury the claimant sustained to her right shoulder when she tripped over the edge of a concrete walkway as she cut the corner of the left turn in the walkway.  The employer's defense rested on the notion that the claimant deviated from the path and cut the corner, rendering her accident outside the scope of her employment.  After reviewing the facts and holding in Miller v. Missouri Highway & Transportation Commission, 287 S.W.3d 671 (Mo. 2009), the Commission determined the claimant fell due to a condition at work, finding the edge of the walkway caused the claimant to slip or trip and injure her shoulder.

In Constance Lunn v. Montgomery County R-II School District, Injury No. 06-084921, the Commission agreed with the ALJ's findings.  The claimant was injured while working at the ticket booth during a high school football game.  The employer argued the claimant was exempt from the statute under Section 287.090.1(5), because she was a contest worker for an interscholastic activities program.  However,  in light of the fact that the claimant was employed by the sponsoring school, the ALJ determined the employer's argument was without merit, and the claimant's employment did fall under RSMo Chapter 287. 

Aggravation

In Lonnie Jones v. Laclede County, Injury No. 08-020145, the Commission agreed with the ALJ's decision.  The claimant suffered a compensable specific work accident, which involved a violent force to the claimant's body, and caused immediate, severe pain complaints requiring emergency treatment.  The claimant was diagnosed with a vertebral compression fracture at L2, that was noted to be a recent fracture, as well as degenerative discs throughout his spine.  The treating physician also opined that the recent work accident had not only caused the L2 compression fracture, but also caused the clamant's degenerative condition to become "much worse."  After the accident, the claimant was diagnosed with not only a disc injury at L2, but also nerve impingement that had not been present before the work accident.  In light of these changes, the Commission found that the claimant was entitled to compensation not only for the L2 compression fracture, but also the progression of the degeneration of the claimant's spine at L4-5 and L5-S1.