FACTS:
The claimant was injured as a result of a fall at work. However, she also
had extensive pre-existing injuries including Moyamoya (a condition which
causes strokes, seizures, and balance problems), a neck surgery and fusion,
surgically treated bilateral carpal tunnel, a rotator cuff repair, arthroscopic
surgeries on both knees, one knee replacement, depression, fibromyalgia,
bilateral ulnar neuropathy, and osteoarthritis. Prior to this injury she was
incapable of anything other than sedentary work. Following the claimant’s work
injury, she returned to work on light duty working about 5 hours a day, which
was similar to her pre-injury work hours. However, she was terminated 10 months
later after her employer received a report from Dr. Koprivica who stated that
the claimant was not employable and should not be employed. At a hearing, an
ALJ determined that the claimant was not PTD before the injury because she had
maintained employment for 2 ½ years prior to her injury and held that the
claimant was PTD as a combination of the work injury and her prior injuries. On
appeal, the Commission affirmed and noted that the claimant sustained new
permanent disabilities as a result of her work injury. Additionally, the
Commission noted that it was consistent with the purposes of the Fund to award compensation to an employee who, until her work
injury, was tenacious enough to compete on the open labor market. On appeal
from the Commission’s decision, the Fund argued that the claimant was already
PTD at the time of her work injury. Alternatively, the Fund argued that if the
claimant was not PTD before the work injury, she could not have been rendered
PTD by a combination of the work injury and her pre-existing disabilities
because she returned to her regular job following the work injury.
HOLDING:
On Appeal, the Court affirmed noting that because the claimant worked part-time
prior to her injury she was still able to compete on the open labor market and,
in fact, obtained her position through the open labor market so she was not
PTD. The Court also found that simply returning to her prior position does not
show she is not PTD and therefore, the Fund was responsible for benefits. The
key question in the Court’s opinion was whether any employer in the ordinary
course of business would hire the claimant.
In Christy
v. Missouri Department of Higher Education/Southwest Missouri State University
and Treasurer of Missouri, Injury No. 06-004801, the claimant worked
for the employer from 1995 through her retirement in 2008. Evidence showed that
she was a good employee for many years. In 2006, she suffered carpal tunnel
syndrome. She underwent releases and then returned to work. Upon returning to
work, the claimant’s job performance ratings indicated that her performance had
decreased but was still satisfactory to her employer. She also had two
pre-existing conditions which did not interfere with her ability to perform her
work duties. At a hearing, the ALJ determined she was not PTD and awarded 17.5%
PPD of each upper extremity at the 200-week level and a 10% load. The ALJ found
that the claimant was not PTD because her return to work after her surgeries
showed that she competed in the open labor market.
On
Appeal, the Commission affirmed the ALJ’s ruling that the claimant was not PTD but
disagreed with the ALJ’s logic. The Commission found that an employee’s return
to work for her employer did not necessarily mean that the employee is not PTD
or that the employer would have hired her after she recovered from her injury
given her resulting disabilities. Specifically, the Commission noted
that the claimant returned to a position she already had and did not compete on
the open labor market. They went on to state that several
considerations, such as loyalty, could have persuaded the employer to re-hire
the claimant and those considerations may not be shared by other employers.
Despite
Claimant’s Expert’s Testimony That He Was PTD as a Result of Prior Injuries and
His Work Injury, Commission Can Still Find Him PTD as a Result of Work Injury Alone
Hembree
v. Treasurer of the State of Missouri, Case No. SD32982 (Mo. App. Ct. 2014)
FACTS:
In 2003 the claimant fell from a scaffolding,
sustaining injuries to his back, head and ribs, and received a settlement. He
was again injured in 2006 after falling off scaffolding, when he sustained
injuries to his ribs, right lung and right arm. Following his 2006 injury, the
claimant was left with virtually no use of his right arm and was forced to rely
almost exclusively on his left arm to perform his job duties. Mr. Lala, the
claimant’s vocational expert, issued a May 2008 report finding that the
claimant was PTD. Later, the claimant sustained a third injury in October 2008 when
he developed a cyst in his left hand. Shortly thereafter, the claimant left his
job and never worked thereafter. The claimant settled his 2006 and 2008 claims
with the employer, and proceeded to trial against the Fund on both his 2006 and
2008 injuries. In 2011, Mr. Lala issued an addendum to his May 2008 report,
finding that the claimant was PTD as a “combination of all of his
disabilities.” At a hearing, an ALJ determined that the claimant was PTD as a
result of a combination of his 2008 injury and previous injuries. The Fund
appealed.
On
Appeal, the Commission reversed the ALJ’s finding and held that the claimant
was PTD before his 2008 injury. While the Commission noted that the claimant
did return to work following his 2006 injury, he returned as a tuck pointer,
which was a position created for him. Additionally, it noted that this tuck
pointing work would basically consist of clean up work that amounted to light
duty. Therefore, the Commission found that the Fund was not liable for PTD
benefits. The claimant appealed.
HOLDING:
On Appeal, the claimant argued that the Fund provided no vocational expert
opinion to support its decision that the claimant was PTD prior to the 2008
injury. The Court noted that the credibility of experts is within the province
of the Commission, and the Fund is not required to present its own vocational
expert. In light of Mr. Lala’s conflicting opinions, the Court found that there
was competent and substantial evidence on which the Commission could base its
opinion.
Poor
Academic Record Does Not Create Permanent Learning Disability to Establish
Pre-Existing Condition
In Curbow
v. Hillhouse Services, Inc. and Treasurer of Missouri, Injury No. 10-006952,
the claimant had pre-existing injuries to his low back. Additionally, the
claimant was poorly educated due to his lack of interest in school. The
claimant sustained an injury in the course and scope of his employment to his
low back. The day after his injury, he saw his chiropractor, who he had been
seeing for his prior low back condition, at which time he reported he was not
getting better, but denied any trauma. At trial, the claimant denied the
history recorded in the chiropractor’s record and explained that he was perhaps
confused by what the word “trauma” meant. An ALJ determined that the claimant
was injured in the course and scope of his employment and assessed 12.5% PPD of
the body referable to the work injury. Regarding the claimant’s argument that
he was PTD as a result of the combination of his work injury and his learning
disability, the ALJ determined that the claimant was not completely illiterate
and his problems with reading and writing were not permanent in nature.
Specifically, the ALJ noted that the claimant voluntarily dropped out in the 9th
grade, never attempted to obtain a GED, and had a very poor attendance rate
while in the 8th grade. Therefore, the ALJ found that the claimant
did not show any initiative towards bettering his education and his mental
deficiency was not permanent. Moreover, it was noted that the claimant had
never been diagnosed with an actual learning disability. On Appeal, the
Commission summarily affirmed.
The
First Question is Whether the Claimant is PTD
From the
Last Injury Alone
In Peek v. Treasurer of Missouri, Injury No.
10-090162, the claimant sustained an injury to her neck in the course
and scope of her employment. The claimant also had a pre-existing rotator cuff
tear although she was able to continue with her employment without any
restrictions or accommodations. Following her work injury she was placed on
light duty and had problems even doing that work due to the pain in her neck as
she had to look at the computer screen. Additionally, she had to lay down intermittently during the day because her pain in
her neck was so bad. She settled her claim against her employer and proceeded
to trial against the Fund alleging PTD. At a hearing, the ALJ noted that the
first question is whether the claimant is PTD from the last injury alone. The
ALJ found that the claimant, due to her difficulty working light duty and need
to intermittently lie down, was PTD as a result of the work injury alone.
Consequently, the ALJ refused to impose liability on the Fund. On appeal, the
Commission summarily affirmed.
Treating
Physician More Credible than Employer’s Five Experts
Beatrice
v. Curators of the University of Missouri, Case No. WD76807 (Mo. App. Ct.
2014)
FACTS:
The claimant was injured while assisting a struggling patient. She
underwent surgery and was post-operatively diagnosed with a bulging disc and
annular tears at L4-5 and L5-S1. The employer’s experts, Drs. Conway, Coyle,
Bridwell, Carr and Chabot testified at a hearing that the claimant sustained
only a back strain as a result of the accident. Conversely, the claimant’s
primary expert, Dr. Highland, who performed her surgery, believed she sustained
lumbar disc bulges and associated annular tears as a result of the accident.
The ALJ found that the claimant sustained an L4-5 disc bulge and an L5-S1 annular
tear, and that the work accident was the prevailing factor in causing those
injuries, and awarded 23% PPD of the body as a whole. The employer appealed to
the Commission who affirmed. The employer again appealed essentially arguing
that the Commission’s ruling was not supported by substantial and competent
evidence as it sided with Dr. Highland’s sole report finding the claimant’s
injury was work-related whereas the employer provided testimony from five
credible medical experts.
HOLDING:
On Appeal, the Appellate Court stated that this was a dispute between the
claimant’s and employer’s experts. It noted that the credibility afforded to
experts is for the Commission to decide. It was further noted that the
Commission’s decision was supported by substantial and competent evidence.
Unless
Squarely Contradicted, Expert Testimony will be Found Credible
In Chambers
v. Sunnen Products Company and Treasurer of Missouri, Injury No. 02-002046,
the claimant was injured while at work. At a hearing, her medical experts, Dr.
deGrange and Dr. Volarich opined that future medical treatment was necessary.
Specifically, Dr. deGrange recommended a third surgery to address the
claimant’s condition, while Dr. Volarich stated that additional surgery was not
indicated but recommended ongoing conservative treatment. The employer’s
expert, Dr. Coyle, opined that no future medical treatment would be needed. At
a hearing, an ALJ found that the claimant was 50% PPD referable to the work
injury, but did not award any future medical treatment. The claimant appealed.
On
Appeal, the Commission noted that Dr. Coyle did not specifically address the
issue of whether conservative treatment might relieve the claimant’s ongoing
back pain and symptoms, and therefore, his opinion did not contradict Dr.
Volarich’s opinion that non-surgical conservative treatment may be needed.
Therefore, the Commission felt that Dr. Volarich was the most persuasive and
ordered the employer to furnish non-surgical future medical treatment that may
be reasonably required to cure and relieve the effects of the work injury.
Surgical
Physician More Credible on Causation
In Dierks
v. Kraft Foods and Treasurer of Missouri, Injury No. 09-040114, the
claimant’s feet became entangled in an air hose that had been left on her
employer’s floor, causing her to trip and fall, sustaining injury to her left
knee. At trial, the employer and its experts argued that the work injury only
caused a knee contusion, given that the MRI film showed a degenerative torn
meniscus. Conversely, the claimant’s expert, Dr. Buchert, acknowledged that the
MRI film suggested a degenerative tear, but stated that while he was performing
surgery on the claimant’s knee and personally examined the medial meniscus, he
found the tears to be acute and not degenerative. The ALJ determined Dr.
Buchert was the most credible, as he had the benefit
of personally examining the meniscal tears and the ALJ found that those tears
were caused by the work accident. The Commission summarily affirmed.
Expert’s
Revision of Their Report Does Not Impair Credibility if Based on New Records
In Yelverton
v. Kuna Foods Service and the Treasurer of Missouri, Injury No. 02-101407,
the claimant was driving a pallet jack when his right leg was impaled on the
blades of a fork lift. He also had pre-existing injuries including a fracture
of his left tibia, for which he underwent surgery and compression fractures of
L1, L2 and L3 as a result of a bicycle accident. While these prior injuries did
not cause the claimant to miss any work, he did have difficulty maintaining a
fixed position for over two hours, as well as chronic back pain that radiated
down the back of his left leg, which was ongoing and lasted up to and through
his work injury.
The
employer’s vocational expert, Mr. England, initially issued a report finding
that the claimant could pursue entry level service employment or acquire
additional skills through the help of the State Division of Vocational
Rehabilitation and did not feel the claimant was totally disabled from all forms
of employment. Subsequent to Mr. England’s report, the claimant saw Dr.
Volarich, the only doctor who examined the claimant’s back, who noted that the
claimant had lumbar radicular syndrome and therefore was unable to tolerate
standing for more than 20 or 30 minutes, and would possibly need to lie down
periodically. After review of Dr. Volarich’s IME, Mr. England issued a second
report wherein he stated that if one assumes that the claimant needs to lie
down periodically due to his low back pain, as Dr. Volarich indicated, then
that could preclude his ability to work and he could be totally disabled as a
combination of the prior back problems and the work injury.
The
claimant’s vocational expert, Ms. Browning, initially issued a report finding
that the claimant could potentially work in a limited number of security guard
and entry level customer service positions that include on the top training,
and also did not feel that the claimant was PTD. However, Ms. Browning had no
records relating to the claimant’s back when she provided her initial report.
Subsequent to Ms. Browning’s initial report, she reviewed additional records
regarding the claimant’s pre-existing back injury referable to the bicycle
incident, and then issued a second report wherein she did find the claimant PTD
as a result of his pre-existing back condition and his work injury. At a
hearing, an ALJ found that the claimant sustained 85% PPD of the right knee as
a result of the work injury, but did not find he was PTD. Specifically, the ALJ
found Mr. England more credible than Ms. Browning because Ms. Browning
originally wrote in her report that the claimant was employable and the
additional back records she reviewed consisted only of five pages from one
medical visit.
On
Appeal, the Commission reversed the ALJ’s finding and found that the claimant
was PTD as a result of his pre-existing and work injury together. Specifically,
the Commission noted that Ms. Browning’s change of opinion due to newly
obtained information was no reason to find the witness less credible and that
as Dr. Volarich was the only doctor to physically examine the claimant’s back,
he was believed the most qualified expert to speak on his back disability.
Claimant’s
Constantly Changing Story Impaired Credibility and Prevented Him
From Satisfying His Burden of Proof
In Pounds v. Gilster-Mary Lee Corp., Injury No.
10-073936, the claimant testified at trial that he slipped off of a
fork lift and sustained immediate pain and injury to his back. He then stated
on direct that he never gave different information regarding the incident to
anyone. However, medical records showed inconsistent histories: 1) his injury
was not a work injury; 2) he injured himself while lifting boxes over a period
of time; 3) his symptoms had gradually increased for one year prior to his date
of injury; 4) he was unsure what his mechanism of injury was; and 5) he gave
several different histories regarding the alleged fork lift incident. Additionally,
the claimant gave conflicting testimony at his hearing and his deposition
regarding how his fork lift incident occurred. Ultimately, the ALJ found that
the claimant failed to meet his burden and show his injury was work related and
therefore, denied compensability. On appeal, the Commission affirmed.
Determination
of Whether Claimant Was Injured In Scope and Course of Employment is Whether
She Was Injured
Because She Was at Work Not Merely
While She Was
at Work
Randolph
County, Missouri v. Moore-Ransdell, Case No. WD76709 (Mo. App. Ct. 2014)
FACTS:
While at work, the claimant squatted down, reached in the back of a file
drawer, and twisted her body in an attempt to remove a file, sustaining injury
to her low back. She treated with Dr. Highland, who diagnosed her with an acute
lumbar strain and internal disc disruption to L3-4, L4-5 and L5-S1 secondary to
the work injury. He subsequently performed surgery. At trial, Dr. Highland
testified on direct that the work injury caused the claimant’s injury and need
for surgery. On cross-examination, Dr. Highland admitted that the claimant had
increasing stenosis and continuing degeneration of the aforementioned discs
which were the source of her pain, and that without her pre-existing disc
degeneration the lumbar strain that she suffered as a result of the work injury
would not have necessarily required the three level fusion procedure
he performed. An ALJ found that the work injury caused the claimant’s low back
pain, subsequent surgery, and related medical treatment. Consequently, the ALJ
awarded medical expenses, TTD benefits and 25% PPD of the body as a whole. The
employer appealed and the Commission affirmed.
HOLDING:
In its first point on appeal, the employer argued that the claimant’s
injury did not arise out of her employment because her injury came from a
hazard or risk to which she was equally exposed in normal non-employment life.
Specifically, the employer argued that the risk was bending over which was not
unique to the claimant’s job. The Court disagreed with this argument and stated
that the claimant was injured when squatting down, reaching into the back of a
file drawer and twisting, which was a risk she would not have been equally
exposed to in her normal non-employment life, and noted that the claimant was
injured because she was at work, not merely while she was at work. In its
second point on appeal, the employer argued that the Commission’s determination
was not supported by competent and substantial evidence because the medical
evidence showed that her work accident was merely a triggering or precipitating
factor and not the prevailing factor in causing her medical condition and
disability. The Court also disagreed with this point, because the Commission
relied on Dr. Highland’s direct testimony, which the Court found constituted
competent and substantial evidence. Therefore, the court affirmed.
Following
Termination, Employee is
Allowed a “Reasonable Time”
to Leave Employer’s Premises Before Employment Relationship is Severed
In Hartman
v. DJSCMS, Inc., Injury No.: 12-003592, the claimant worked as a car
salesman and on his date of injury, was scheduled to work from 9:00 A.M. - 9:00
P.M. However, he was fired sometime around 4:00 P.M. Almost
immediately after he was fired, the claimant slipped and fell in the employer’s
parking lot. According to the claimant, after being fired he drove to the
finance department to get credit for the deals that he had in process, but upon
arrival he discovered that the office door was closed. He then returned to his
car to get his paperwork and it was at that time that he fell. According to the
employer’s GM, he had never known of a salesman who finished deals after being
terminated and also believed it was unlikely that the claimant was finishing
deals because he was not selling cars due to the winding down of the business.
The undisputed facts were that following his termination the claimant had not
closed out any deals, emptied his desk, or cleaned out/turned over the demo car
he was given for personal use.
At
trial, the employer argued that the claimant’s accident did not arise out of
and in the course of his employment because he was fired immediately before his
accident. However, an ALJ disagreed and stated that following termination the
employee is entitled a “reasonable time” to leave the premises of his employer
before it can be said that the relationship of the employer and employee is
completely severed. Therefore, the ALJ determined that the claimant was within
the course and scope of his employment when injured. Additionally, the ALJ
determined that the claimant’s average weekly wage could not be fairly and
justly determined by the standard calculation of his 13 weeks prior to the
termination. Specifically, the ALJ noted that his sales location was in the
process of being shut down, the inventory was low, the mark ups were cut and
his sales were atypical. Therefore, the ALJ ordered his average weekly wage to
be calculated based on all of his earnings in the 39 weeks of his employment.
The ALJ further noted that the claimant’s use of the demo vehicle should be
included in his gross wages because it was an economic gain received in
consideration for work. Finally, the ALJ noted that Dr. Volarich was the only
medical expert to opine on PPD and, therefore, he adopted Dr. Volarich’s
assessment of 60% PPD of the body as a whole. On Appeal, the Commission
summarily affirmed.
Fall
on Icy Parking Lot Found Compensable
In Whorton
v. Silgan Container, Injury No. 07-125897, the claimant arrived at work
and then checked on her assigned duties for the day. As she was assigned
cleaning tasks, she returned to her car to obtain gloves, which she used for
her cleaning tasks. Additionally, on her way to the car, the claimant had with
her a fix-a-flat to address one of the flat tires on her personal vehicle.
While walking to her vehicle she slipped on ice in her employer’s parking lot
and fell, sustaining injury. At a hearing, an ALJ noted that when an employee
is performing an act for the mutual benefit of both themselves and the
employer, an injury arising out of that activity is usually compensable even
though the advantage to the employer is slight. The ALJ further noted that in
instances of mutual benefit, the injury will not be deemed to have arisen out
of the course and scope of employment when the indirect benefit to the employer
“becomes so tenuous as to be impercetible.” In this case however, the ALJ found
that the claimant was injured in the course and scope of her employment because
she was not traveling to her car merely for personal business but was also
acting in the employer’s interests by getting gloves from her car to perform
her assigned duties. The ALJ found that the claimant sustained 40% PPD of her
right ankle, 30% PPD of the right knee and 20% of the lumbosacral spine.
On
Appeal, the Commission affirmed the ALJ’s finding that the claimant was injured
in the course and scope of her employment, but reached that conclusion on
different reasoning. Specifically, the Commission noted that there is no evidence
in the record to support a finding that the claimant was equally exposed to the
risk of falling on the icy parking lot in her normal non-employment life and
stated that there was no need to consider the mutual benefit doctrine as the
ALJ did.
Finding
of Employer-Employee Relationship Requires the Employee to Be in the Service
and Control of the Employer
In Marty
Warren (Deceased) v. David Warren, Injury No. 02-148212, the claimant
was working with his father applying siding to the home of the father’s friend.
The claimant was instructed by his father to remove a nail, but in the process
of doing so he lost his balance and fell to the ground, sustaining fatal
injuries. The sole issue in this case was whether the claimant was an employee
of his father at the time of the injury. At trial, the claimant’s sister
testified that he was living with her on the date of injury and he had issues
with alcohol and substance abuse. She further stated that on the date of
injury, she asked her father to take the claimant with him because she was
going out-of-town and did not want the claimant to be alone in her home given
his alcohol and substance issues.
Similarly, the father testified that he was doing his daughter a favor
and allowed the claimant to tag along on the siding job. The claimant’s widow
testified he had told her prior to the date of injury that he would be working
on a siding job and making between $600.00 - $1,000.00.
Additionally, she testified that the claimant had worked 6 - 8 jobs for his
father in the past. At a hearing, an ALJ believed the testimony of the father
and sister more credible and found that the father was simply helping his
daughter by taking the claimant to work. The ALJ did not find the widow
credible because she was a poor historian and the claimant was not living with
her at the time of his injury.
On
Appeal, the Commission affirmed, noting that in order to find an employment
relationship, it must be shown that 1) the claimant was in the service of the
alleged employer and 2) the services were controllable by the employer.
Ultimately, it found that the father did not control the services of the
claimant.
Eight
Factors Determine Whether Worker is an Employee or Independent Contractor
In
Parks v. Independent Living Center of Southeast Missouri, Injury No.
10-069477, the claimant was injured while working, but it was disputed
whether or not she was an employee or an independent contractor at the time of
her injury. Evidence showed that she was hired as a caregiver to administer
Medicaid and home health services to disabled senior citizens know as
“consumers.” At a hearing, testimony demonstrated that the alleged employer
acted as a “vendor” who provided services such as orientation and training,
assisting consumers by performing background checks on their caregivers,
receiving Applications for Employment and necessary tax documents, and
administering the payroll. Essentially, the testimony demonstrated that the
alleged employer assisted caregivers in finding consumers and receiving payment
but was thereafter uninvolved in the relationship between the caregiver and
consumer. An ALJ found that the claimant was an independent contractor at the
time of her injury, and therefore, her injury was not compensable.
On
Appeal, the Commission noted that the definition of “employee” is a factual
question which depends on several factors. The Court listed out eight factors,
including: 1) The extent of control; 2) The actual exercise of control; 3) The
duration of the employment; 4) The right to discharge; 5) The method of
payment; 6) The degree to which the alleged employer furnished equipment; 7)
The extent of which the work is the regular business of the alleged employer;
and 8) The employment contract. The Commission found that only two of the eight
factors had been satisfied and therefore, the claimant was not an employee but
an independent contractor.
Claimant
Bears the Burden of Proof
In
Welty v. Mississippi Lime Co., Injury No. 12-040559, the
claimant developed tinnitus and binaural hearing loss, which he claimed was due
to repeated exposure to loud noise at his employer’s facility. The claimant’s
expert, Dr. Mason, testified at a hearing that the claimant’s hearing loss
could be the result of the noise or it could be the result of the claimant’s
family history of hearing loss. Therefore, the ALJ determined that the claimant
failed to meet his burden on the issue of medical causation. On appeal, the
Commission summarily affirmed.
Job
Duties Need Not Be Strenuous to Meet Burden of Proving Occupational Disease
In
Szigeti v. Metropolitan St. Louis Sewer Dist., Injury No.
10-044815, the claimant worked as a file clerk full-time from 1996
through 2011. When the customers finished with the files or drawings, they
placed them in a basket for the claimant to re-file. The drawings were stored
in three foot tubes, and the claimant rolled them up to return them to the tube.
When she was not waiting on customers, she manually moved all inappropriately
stored information out of the database and put it in to the correct spot in the
new database. In addition, she worked on a project to scan drawings into a
digital format, which required slowly feeding the drawings into a scanner,
similar to copying a piece of paper. The claimant eventually developed symptoms
in her bilateral wrists and was diagnosed with bilateral carpal tunnel
syndrome. At a hearing, the employer’s experts testified that her job duties
were not hand intensive enough to cause her work injury. Conversely, her
experts testified her injuries were due to her repetitive job duties. The ALJ
found the claimant’s experts were more credible and held her injuries were compensable.
On appeal, the Commission summarily affirmed.
Statute of Limitations Begins to Run
When the Employer-Insurer Make the Last Payment on the Claim
In
Tracy v. Glazders Wholesale Drug Company, Injury No. 09-013530,
the claimant sustained an injury to his back on February 20, 2009. The employer
initially authorized medical treatment which the claimant underwent. Dr.
Kitchens, a treating physician, stated on March 31, 2009 that the claimant’s
work injury was the primary factor in aggravating her spondylolisthesis.
However, on June 3, 2009 the employer abruptly notified Dr. Kitchens that the
claim was now being denied and no further treatment would be authorized.
Although it is not specified why treatment was abruptly stopped, it appears the
employer-insurer discovered a statute of limitations issue. Thereafter, he
treated on his own. At a hearing, the employer argued that the claim was barred
by the statute of limitations, as the report of injury was timely filed and the
claimant did not bring his claim within you two year period. The claimant
argued that the two year period did not begin to run until August 2010, the
date that Dr. Volarich, his expert, opined he was at MMI. Additionally, the
claimant argued that the period did not begin to run until the last payment was
made by his private insurer. Specifically, the claimant argued that
the statute was silent as to who made the last payment on the claim and
therefore, pursuant to strict construction, the period should not begin to run
until the last payment was made on that claim by any entity. The ALJ disagreed
with the claimant’s latter argument and found that payments made by a private
insurer do not toll the statute of limitations. Additionally, the ALJ was not
persuaded by the claimant’s former argument that the period for bringing his
claim did not begin to run until August 2010. Consequently, the ALJ found that
the Claim was time-barred by the statute of limitations because the period for
bringing his claim began to run in June 2009, when the employer-insurer made
its last payment on the claim. On appeal, the Commission affirmed.
Losing
at a Hearing on an Accident Claim Does Not Bar Claimant
From
Bringing an Occupational Disease Claim For the Same Injury
In
Trimmer v. Johnson Controls, Inc., Injury No. 03-147616,
the claimant worked a strenuous job which required constant heavy lifting and
caused aches and pains as a result. In 2003, he fell at work and sustained an
injury to his shoulder. At the first hearing on this claim, testimony of Dr.
Fretz was introduced by the employer which noted that the claimant did work in
a strenuous position but the claimant had no specific event that caused the
beginning of his shoulder pain. Based on that testimony, the ALJ found that the
claimant failed to prove he suffered an accident but the ALJ went on to note
that she felt the matter should be found compensable based on the claimant’s
repetitive strenuous job duties.
The
claimant subsequently re-filed his claim as an occupational disease and a
second hearing was held. At the second hearing, the employer-insurer argued
that the claim had already been adjudicated and could not be re-litigated.
However, the ALJ found that the second claim was not barred by the initial
claim in that it alleged an occupational disease as opposed to an accident and
therefore, the evidence necessary to sustain these two claims differed. The ALJ
further noted that in the initial hearing the ALJ did not make any findings
regarding the occupational disease claim and as such, the second claim was not
barred. Finding that the claim was not barred, the ALJ went on to find that the
claimant did sustain an occupational disease as a result of his job duties and
awarded benefits. On appeal, the Commission affirmed.
Minor
Subsequent Injury Can Expose Employer to PTD Liability
In
Gray v. Jack Cooper Transport Company and Treasurer of Missouri,
Injury No.: 05-015019, the claimant had multiple pre-existing conditions.
He had scarring and deformities which affected the thumb and fingers of his
left hand. Additionally, the claimant had pre-existing issues with depression
and anxiety, for which he had been receiving medical care since the 1980s.
Finally, in the early 1990s the claimant suffered a hyperextension of his left
elbow.
On
June 26, 2003 the claimant suffered his first work injury to his low back for
which he underwent a fusion. While still treating for his 2003 injury, he
sustained another injury to his low back on January 31, 2005, which is the
primary injury in this case. The claimant continued to treat with Dr. Robson,
his treating physician for the 2003 injury, until he was placed at MMI in 2006.
He settled his 2003 injury against his employer for 44% PPD of the body as a
whole.
At
a hearing for the 2005 claim, the claimant testified that he was still in pain
from his 2003 injury until his 2005 injury but stated that following his 2005
injury, his symptoms were much worse. The employer-insurer argued that the
claimant’s symptoms stemmed from his prior conditions, most notably, his 2003
back injury. The ALJ noted that Dr. Robson’s 2006 report, wherein he placed the
claimant at MMI, made no reference to his 2005 injury or any resulting
disability from that injury. The ALJ also noted that Dr. Poetz, the claimant’s
expert, believed that the claimant was PTD as a combination of his work injury
and his pre-existing conditions. Ultimately, the ALJ found Dr. Robson more
credible and determined that the claimant’s ongoing disabilities were a result
of his 2003 accident and not the result of his 2005 injury. Moreover, the ALJ
found that the claimant did not suffer a new injury in 2005 because his alleged
strain was merely the product of the on and off exacerbations of his 2003
injury. Therefore, the ALJ determined that the 2005 work injury was not
compensable.
The
Commission overturned the ALJ’s finding and determined that the claimant and
his experts were more credible. Moreover, the Commission determined that the
claimant was PTD as a result of the 2005 work accident and his pre-existing
disabilities. The Commission stated that the 2005 work accident caused a 20%
PPD to the body. Additionally, the Commission imposed liability on the Second
Injury Fund finding that each of the claimant’s aforementioned pre-existing conditions
were serious enough to constitute hindrances or
obstacles to employment.
To
Impose Liability Against the Fund, Claimant’s Prior Injuries Need Not Be at MMI
at Time of Primary Injury if Claimant Seeks PTD Benefits
Lewis
v. Treasurer of the State of Missouri, Case No. ED100657 (Mo. App. Ct.
2014)
FACTS:
The claimant sustained a work injury in 2007. He also had several prior
injuries, one of which was a 2004 injury to his left shoulder and another was
for a 2006 carpal tunnel syndrome. The claimant was not placed at MMI for his
2004 or 2006 injuries until after his primary injury, which was the 2007
injury. At a hearing, the claimant testified regarding his injuries and stated
that the symptoms caused by his 2004 shoulder injury never improved with
treatment and had never completely resolved. An ALJ found that the claimant was
PTD as a result of his primary injury and his pre-existing conditions, and
imposed liability against the Fund. The Fund appealed to the Commission. On
Appeal, the Commission affirmed. The Fund’s primary argument on appeal was that
the Commission erred in its analysis because it included pre-existing
disabilities from the claimant’s 2004 left shoulder injury and his 2006 carpal
tunnel injury, which could not be considered because those injuries had not
reached MMI at the time of the primary injury.
HOLDING:
Addressing the Fund’s first point, the Appellate Court noted that
pre-existing disabilities need not be at MMI in order to be considered for PTD
benefits. Specifically, the Appellate Court noted that determining the specific
amount of disability from pre-existing injuries is relevant for the calculation
of PPD benefits, but not PTD benefits. In order to establish liability against
the Fund for PTD, the claimant need only show the extent or percentage of the
PPD resulting from the primary injury and then prove that a combination of the
primary injury and the pre-existing disability resulted in PTD.
Test
For Fund Liability is the Potential That the Pre-Existing Condition May Combine
with the Work Injury to Result in Greater Disability
In
Broekhoven v. Treasurer of Missouri, Injury No. 07-012863, the
claimant sustained a work injury involving his lumbar spine in early 2007.
Prior to his work injury, the claimant had been diagnosed with degeneration and
a herniated disc in the lumbar spine for which surgery had been recommended but
the claimant declined to undergo. He settled his claim against the employer and
proceeded to a hearing against the Fund. At a hearing, the ALJ determined that
the claimant was PTD solely as a result of the January 2007 work injury. The
claimant appealed, arguing that he was PTD, but not as a result of the work
injury alone, rather, as a result of a combination of the work injury and his
pre-existing disabilities.
On
Appeal, the Commission stated that the test for Fund liability is the potential
that the pre-existing condition may combine with a work-related injury in the
future so as to cause a greater degree of disability then would have resulted
in the absence of the pre-existing condition. The Commission stated that the
claimant had serious medical conditions prior to his work injury, and noted
that all of the testifying experts agreed that the claimant did have some
pre-existing disability. Therefore, the Commission reversed the ALJ’s Award,
and found that the claimant was PTD as a result of the work injury and his
pre-existing disabilities.
Exclusivity
of Division’s Jurisdiction Should Be Raised as an Affirmative Defense
Pierce v. Zurich American Insurance Company, Case No.
WD77095 (Mo. App. Ct. 2014)
FACTS:
In 2009 the claimant sustained a knee injury while working for his
employer. The employer/insurer’s treating physician opined that the claimant
would ultimately need a total knee replacement, but it would not be due to his
work injury. Conversely, the claimant’s treating physician opined that he would
need a total knee replacement which would be related to his work injury.
Ultimately, in May 2012 the parties entered into a settlement for 26% of the
knee with supplemental language agreeing to leave any medical treatment
provided in Section 287.140.8 open for one year after settlement. For
reference, Section 287.140.8 is the prosthetics clause commonly referred to as
the Reactivation Provision. In June 2012, one month after settlement, the
claimant requested a knee replacement. When this treatment was denied, the
claimant filed a civil suit requesting that the trial court compel the insurer
to provide knee replacement surgery. In response, the insurer filed a motion to
dismiss arguing that the trial court lacked subject matter jurisdiction because
the Division had exclusive jurisdiction. The trial court granted the claimant’s
motion finding that the Division did have exclusive jurisdiction.
