Mark Tombaugh v. the
Treasurer of the State of Missouri as Custodian of Second Injury Fund, Case
No. WD73171 (Mo. App. W.D. 2011)
FACTS: The claimant was
involved in two separate incidents in which he sustained an injury to his neck
while on the job. While treating for his neck, he found out that he had a
heart condition which had not been previously diagnosed, but it existed prior
to the claimant’s work injury. He also had other pre-existing injuries,
including disabling orthopedic conditions to multiple body parts.
The claimant filed a Second
Injury Fund claim, alleging that he was permanently and totally disabled. The
claimant’s expert, Dr. Koprivica provided a report noting that the claimant had
35% PPD to the body as a whole as a result of the work injury and 25% PPD to
the body as a whole due to the claimant’s pre-existing heart condition, along
with other partial disabilities with reference to the other body parts. He was
of the opinion that among the claimant’s pre-existing conditions, his condition
to his heart was of the greatest significance and found the claimant was
permanently and totally disabled. Dr. Koprivica also was later deposed and
testified that the claimant was totally disabled, even taking the heart
condition out of the equation.
The Division found that
claimant’s heart condition did not trigger the liability of the Fund because it
was not a measurable, pre-existing disability of such seriousness as to
constitute a hindrance or obstacle to his employment prior to the work-related
accident and, therefore, found the Fund had no liability with respect to the
heart condition. The Division did find the Fund liable for PPD based on his
pre-existing orthopedic conditions but did not address the doctor’s final
conclusion that claimant’s pre-existing condition in combination with the
work-related injuries rendered him totally and permanently disabled, even when the
heart condition was excluded from the equation. The Commission affirmed the
Division’s decision.
HOLDING: The claimant
argued that the Commission erred in denying him permanent and total disability
in that its conclusion that Dr. Koprivica’s assessment of the claimant’s
permanent total disability included the cardiac condition was not based on
substantial and competent evidence because the doctor testified that even
excluding the cardiac condition the claimant was totally disabled.
The Court found that it was
possible the Commission found that the doctor’s report and his initial
testimony were credible but that his final statement was not, however, from a
review of the record, it appeared likely that the Commission failed to consider
the doctor’s final statement as opposed to rejecting it as not credible.
Therefore, the Court did not find there was enough information to properly
affirm or overturn the denial PTD benefits, and therefore instructed the
Commission to clarify whether it made a credibility determination with regard
to Dr. Koprivica’s statement that the claimant was totally and permanently
disabled even excluding the heart condition.
Credibility
of Doctors’ Opinions
Top
Kathleen Elmore v. Missouri
State Treasurer as Custodian of the Second Injury Fund, Case No.
SD30906 (Mo. App. S.D. 2011)
FACTS: The claimant, a
registered nurse, worked in a hospital for over 20 years. In 1999, she
underwent back surgery but continued to have back problems and in 2000, the
claimant was diagnosed with fibromyalgia. In August 2003, she began
experiencing problems with her right hand and underwent 3 hand surgeries from
February 2004 to March 2005. The claimant testified that her back pain and
fibromyalgia worsened after developing problems with her hand. The claimant
settled her workers’ compensation claim for disability to her hand at 33 1/8%.
The claimant was examined by Dr.
Paff at her attorney’s request, and he believed the claimant had 10% greater
overall disability when her occupational injury was considered in combination
with her back and fibromyalgia disabilities. The claimant’s vocational expert,
Phillip A. Eldred, believed that the claimant was not employable in the open
labor market and was permanently and totally disabled.
The Fund’s vocational expert,
James England, opined that the claimant was still employable as she was highly
marketable if one considered her overall work background, experience, training.
An ALJ determined that the
claimant’s combined disability was 10% greater to her body as a whole as a
result of her occupational injury along with her pre-existing disabilities and
ordered the Fund to pay the claimant $13,882.00 as PPD benefits. The Commission
affirmed this decision and the claimant appealed asserting that the Commission
erred in rejecting her claim that she was permanently and totally disabled
because the claimant’s expert was more credible as a matter of law then
witnesses relied on by the Commission.
HOLDING: The Commission
found that the opinions of Mr. England were more persuasive in that Mr. England
applied the restrictions of Dr. Paff which were in evidence, as opposed to Mr.
Eldred who based his opinion in part upon the restrictions of Dr. Shoemaker’s
report which was not in evidence and was completed before the claimant’s last
surgery.
The claimant then argued that the
medical information Dr. Eldred relied on was actually in evidence since it was
set out in his report which was in introduced into evidence without objection,
and, therefore, argued that the Commission cannot, as a matter of law, find Mr.
Eldred less credible than Mr. England on the grounds that Mr. Eldred had relied
on information that was not in evidence. The Court then noted that the
Commission made no statement that Mr. Eldred’s testimony and report was not
considered. Instead the Commission summarized Mr. Eldred’s evaluation and the
doctors he relied upon when reaching this opinion. Therefore the Court found
that the Commission did not err as a matter of law in finding the testimony
from Mr. England and Dr. Paff more persuasive than that of Mr. Eldred.
Safety
Violation of an Employer - The Scaffolding Act §292.090
Top
Terry Hornbeck v. Spectra
Painting, Inc. and Treasurer of the State of Missouri, Second Injury Fund,
Case No. ED 95680 (Mo. App. E.D. 2011)
FACTS: The claimant was a
painter and drywall taper who unsuccessfully tried to reach the roof by scaling
a ladder that had been placed on top of a small scaffold, at which time the
ladder and scaffolding collapsed, and he fell approximately ten feet to the
concrete below. He was then taken to the hospital complaining of pain in his
feet, legs, back and left shoulder. The claimant visited with three different
physicians provided by the employer, Drs. Paletta, Aubuchon and Chabot, however
they were unable to diagnose the physical cause that correlated with the pain
expressed by the claimant, and therefore he was released from care in April
2007. However in October 2007, because of his continued complaints, he began
treating with other doctors through his own insurance.
In January 2008, the claimant
filed a Motion for Hardship Hearing, and the Administrative Law Judge found the
claimant had reached MMI, was not entitled to future medical treatment, unpaid
medical expenses or TTD benefits, that the employer did not violate the
Scaffolding Act and thus was not liable for a 15% penalty and finally his
injuries sustained on November 9, 2006 resulted in a PPD of 20% of the left
biceps, 5% for each foot, and 2.5% of the total body as a whole for the lower
back and application of a 5% multiplicity factor was warranted.
On cross-appeal the employer
argued that the Commission erred in awarding claimant a 15% enhancement to his
award after finding a violation of the Scaffolding Act. In order to show
entitlement to a 15% enhancement of benefits, the claimant is required to
establish (1) the existence of the statute applicable to the facts surrounding
the work injury, (2) violation of that statute by the employer and (3) a causal
connection between the violation and compensable injury.
HOLDING: The Commission
affirmed the ALJ’s decision except for the ALJ’s finding of a Scaffolding Act
violation and ordering a 15% enhancement of claimant’s award. The Commission
found and the Court agreed that the Scaffolding Act is clearly applicable to
the facts surrounding claimant’s injury. The Court looked to Propulonris
v. Goebel Construction Company where that Court held that in the
absence of an exculpatory showing on the part of the employer, the fall of a
scaffold is prima facie evidence of negligence on the part of the employer and
a violation of the statute. The Court noted that the employer presented no
such exculpatory evidence and therefore the Commission was correct in finding a
violation of the Scaffolding Act.
The Court also determined that
the 15% penalty should be assessed to all “compensation.” The Court found that
TTD benefits, medical benefits, and PPD benefits all are compensation, however,
the Court did note that the penalty does not apply to amounts ordered from the
Fund.
A
Safety Violation - Employer Does Not Always Have to Prove Prior Discipline
Top
Eddie Thompson v. ICI
American Holding f/k/a National Starch & Chemical, Case No.
WD72374 (Mo. App. W.D. 2011)
FACTS: The claimant
sustained injury to three fingers on his right hand when he and another
employee attempted to replace three broken drive belts on a “blending blower.”
The claimant and his co-worker cut the electrical power to the blower prior to
beginning work on the belts, but they failed to eliminate the reverse air flow to
the blower. As a result, the sheave continued to rotate and instead of
shutting off the air valve, claimant and his co-worker inserted a broom into
the machine to stop the sheave from rotating, the broom handle broke shortly
thereafter at which time claimant sustained his injuries.
Employer argued that the claimant
caused his own injury by failing to follow the lockout rules which required
that workers completely de-energize and isolate a piece of equipment from
energy sources before any maintenance or repair work is conducted on the
equipment.
The ALJ awarded the claimant
$72,834.39 for TTD, PPD, and medical costs but assessed a 37.5% reduction to
the award based on the finding that his injury was caused by his failure to
follow the lock-out rules. Claimant appealed arguing there was no evidence that
employer enforced the lock-out rules against violators of those rules prior to
his accident, and by its very nature, prior safety rule instruction does not
constitute prior safety rule enforcement.
HOLDING: The Court found
the statute does not require evidence that an employer enforced its safety
rules by imposing discipline upon employees who violated the rules, instead the
statute requires the employer make reasonable efforts to cause its employees to
obey or follow the rules. Here, the employees were actively and repeatedly
trained on these rules, they were given written tests on the rules and they
were warned of discipline up to, and including, termination if they failed to
comply.
The Court found that the training
materials, as well as the testimony of the witnesses proved that the employer
made a reasonable effort to cause its employees to obey and follow the rules.
Furthermore the Commission is not required to conclude that the employer failed
to make reasonable efforts to cause its employees to obey or follow safety
regulations simply because the record lacks evidence of previous discipline for
safety violations. The decision of the Commission therefore was affirmed.
The Exclusivity Provision and
Occupational Disease Claims
The Exclusivity Provision and
Occupational Disease Claims
Top
State ex rel. KCP&L of
Greater Missouri Operations Company v. The Honorable Jacqueline Cook, Circuit
Court Judge, 17th Judicial Circuit Court, Case No. W. D.
73462 (Mo. App. W.D. 2011)
