Simon Law Group, P.C.
720 Olive Street, Suite 1720, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
July 2015 – September 2015
Claim Compensable Because Claimant Not Equally Exposed
to That Particular Dirt Clod
Young v. Boone Electric Cooperative, Case Nos. WD76567 & WD76568 (Mo. App. Ct. 2015)
FACTS: The
claimant injured his left knee in 2008 when, while walking to his truck at a
job site, he stepped on a “frozen dirt clod” and his knee buckled and popped.
Of note, the claimant also did some farming in his spare time. The Commission
found the knee injury compensable and stated that the employer/insurer failed
to identify evidence that the claimant was equally exposed to dirt clods in his
normal nonemployment life.
HOLDING: On
appeal, the employer/insurer argued that the claimant failed to prove that the
risk from which his injury arose (stepping on a dirt clod) was work related
because he worked on a farm and therefore, was equally exposed to that risk.
The court stated the claimant injured his knee because he was at work, not
merely while he was at work. The court also stated the claimant was not
equally exposed to the hazard of slipping on dirt clods at that particular
work site where his injury occurred. Therefore, the claim was found
compensable.
Injury on Inclined Parking Lot Compensable Because it
was Not a Risk Claimant was Equally Exposed to in Normal Non-Employment Life
In Cotner (Deceased) vs. Southern Personnel
Management, Inc., Injury No. 11-042143, the claimant was a 68 year old
shuttle bus driver. On June 2, 2011, the
claimant’s employer requested that he perform an inspection of a possibly
defective front air conditioning unit.
In the course of that inspection, the claimant squatted down and upon
returning to a standing position, he stepped backwards and fell, injuring his
right hip, neck, and right shoulder. The claimant testified that he may have
slipped on a pebble or perhaps his foot stuck to the pavement.
At the hearing, the employer/insurer asserted that the
claimant’s injury came from a risk to which he would be equally exposed in
normal non-employment life. The ALJ
disagreed with this noting that 1) it was very hot on the date of injury and
parts of the pavement in the area of the accident had been repaired with tar or
asphalt sealant, 2) the claimant had to bend forward and squat in order to
listen to the air conditioning compressor, and 3) when he stood up and began to
fall backwards on the pavement, he stumbled backwards a greater distance due to
the downhill slope nature of the pavement he was on. Therefore, the ALJ found
the claim compensable.
On appeal, the Commission affirmed the ALJ’s
decision. On appeal, the
employer/insurer argued that the ALJ’s identification of various factors which
may have contributed to the claimant’s fall, demonstrated that the ALJ engaged
in speculation as to the specific risk or hazard which caused the claimant’s
injuries. The Commission disagreed and
stated the claimant did testify that the slope of the parking lot accelerated
his falling backwards. The Commission
then stated that squatting down on a significant incline and subsequently
stumbling or falling is not a risk that claimants would be equally exposed to
in normal non-employment life. Therefore, this matter was deemed compensable.
Claim Not Compensable Because Claimant was Equally
Exposed to Force of Wringing out a Rag in her Normal Non-Employment Life
In Pressley vs. Homewood Suites, Injury No.
09-094722, the claimant testified that she developed a “lump” on the back
of her left hand near her wrist in May 2008. On February 28, 2009 she was
wringing out a cleaning rag when she felt a pop in her left wrist. She reported
the injury but did not seek treatment until four months later, when while at
home, she felt a pop in her index finger and shooting pain from her wrist to
her elbow. She reported the injury to her employer who sent her to BarnesCare.
The doctor at BarnesCare did not know if her injury was work related. She was
referred to Dr. Feinstein, who performed surgery. He was not asked to provide a
causation opinion. The employer reported the injury to the insurer and the
insurer issued a denial letter on November 6, 2009, after Dr. Feinstein had
performed surgery.
Interestingly, the claimant’s attorney wrote Dr.
Feinstein a letter requesting information about the injury. Dr. Feinstein responded that it would be
unusual for the claimant to sustain the injury she did (a ruptured tendon) from
a low grade activity such as wringing out a cleaning rag. The doctor went on to state that the claimant
had pre-existing arthritis and bone spurs which weakened her tendon and made it
more prone to injury from minor trauma, such as wringing out a rag. Dr. Feinstein later testified that the work
incident was not the prevailing factor in causing her injury but rather her
preexisting osteoarthritis was the prevailing factor in causing her injury. Dr.
Volarich, the claimant’s expert, opined that the work incident was the
prevailing factor in causing a left wrist strain injury and aggravation of
arthritis, which required surgery. At a
hearing, the ALJ found Dr. Feinstein’s causation opinion more credible and
denied benefits.
On appeal, the Commission affirmed the ALJ’s ruling
that the claim was not compensable based on Dr. Feinstein’s opinion that
wringing out a wet rag would not involve enough force to cause her injury. The
Commission also stated that the simple action of wringing out a wet rag was a
risk that the claimant would be equally exposed to in her normal nonemployment
life. Therefore, the claim was denied.
The Commission acknowledged the claimant’s job duties
as a house cleaner involved repetitive and strenuous use of her hands but
stated that she did not provide expert testimony identifying such job duties as
the prevailing factor in her injury. Additionally, she made clear in both her
brief and oral argument that she was pursuing an accident theory as opposed to
an occupational disease.
Claim Compensable Because Claimant was Not Equally
Exposed to Sidewalk With Steep Drop-Off
In Narens vs. Lincoln University, Injury No.
12-025345, the claimant was leaving work, walking to the Lincoln University
parking lot where she parked her car.
She was walking on the right side of the sidewalk and stepped to the
side to avoid a group of students walking towards her. When she stepped to the right, she stepped
off the sidewalk and fell, injuring her left ankle. The claimant was injured on property owned
and controlled by the employer. Photos
of the location where she fell indicated a difference in the height of the
ground between the sidewalk and the grassy area next to the sidewalk where she
stepped to avoid the students. At a
hearing, an ALJ found that the claimant sustained a compensable injury.
On appeal, the employer/insurer argued that the
claimant was not injured in the course and scope of her employment because 1)
she was on her way home for the day and 2) she was equally exposed to the risk
source as she would have walked on crowded sidewalks in her normal non-employment
life. The Commission disagreed with both
of these arguments. The Commission
stated that the claimant was in the course and scope of her employment because
although she was heading home she was on premises owned and controlled by the
employer so the extension of premises doctrine applied. The Commission also stated that while the
claimant would have been exposed to the risk source of walking on crowded
sidewalks in a normal non-employment life, she was not equally exposed to the
risk of walking on a crowded campus sidewalk with a steep drop off. The Commission also noted that the record
established the claimant’s supervisor subsequently fell at the same location
due to the same conditions and therefore, this supported the fact that the
steep drop off posed an increased risk.
Employer/Insurer Unable to Prove Claimant’s Injury was
Idiopathic so Injury Found Compensable
In Campbell (Deceased) vs. Trees Unlimited,
Inc., Injury No. 11-033989, the claimant was the owner of the
insured. The claimant’s job duties
included working as a salesperson. He frequently traveled during the mornings
making sales calls and performing other duties. He would then typically return
to his Joplin office in the afternoon.
The claimant had made calls into the office on the date of injury three
times before 10:00 a.m. At noon, the
claimant was involved in a fatal single vehicle auto crash 7.5 miles south of
Joplin. The only testifying witness to
the accident estimated the claimant was traveling about 70 miles per hour when
the claimant’s vehicle moved from the right lane, into the left lane, and then
drove into the median and straight down the median. The witness stated that the claimant did not
swerve or use his brakes and told the investigating officer that it appeared
that the claimant had fallen asleep while driving. The investigating officer stated that the
claimant’s vehicle traveled a total of 499 feet before coming to a stop. He further stated that statements from
witnesses and observations of the claimant’s body showed a possibility that he
was deceased prior to impact but that could not be positively determined. Toxicology tests following the accident were
essentially negative.
Several experts testified, some on behalf of the claimant,
some on behalf of the employer/insurer, and some neutral. None of the experts were sure whether the
claimant had a heart attack or was possibly deceased prior to the motor vehicle
accident but none ruled it out.
Essentially, the experts were unsure what the claimant’s health
condition was immediately preceding the accident and no autopsy was ever
performed.
At a hearing, the ALJ stated that at the time of the
accident, the claimant was in a place and area which he would normally work
from and there was no evidence he was on any kind of deviation or distinct
personal errand. Therefore, the ALJ found he was within the course and scope of
his employment at the time of the injury.
The ALJ also held that the employer/insurer failed to demonstrate the claimant
died of idiopathic causes as their own expert testified that it would be
speculative whether the claimant was already deceased at the time of the
accident. Death benefits were awarded as
were funeral expenses. On appeal, the Commission summarily affirmed.
Claim Denied Because Expert Failed to Use Proper
Standard
In Shackleford vs. SAB of TSD of the City of St.
Louis, Injury No. 10-087428, the claimant, a school teacher, was
writing on a whiteboard when a student threw a ping pong ball-sized wad of
sunflower seed hulls wrapped in crumpled paper, which struck the claimant in
the head and she felt radiating neck pain.
Prior to the work incident, she had injured her neck in a motor vehicle
accident in 1998 and was offered surgery but chose to treat conservatively. She also injured her neck and right arm in
2006 after she fell and was diagnosed with cervical radiculopathy, which was
also treated conservatively. The employer/insurer’s
expert, Dr. Randolph, stated that her radicular symptoms stemmed from
degenerative changes which preexisted the work injury and although she
sustained a contusion to the head, there was no permanent structural
injury. The claimant’s expert, Dr.
Volarich, felt that the work injury aggravated the claimant’s underlying degenerative
disc disease. At a hearing, an ALJ found that the claimant did not sustain a
compensable injury because of her expert’s opinion that she simply had
aggravated a preexisting condition.
On appeal, the Commission affirmed but clarified that
the claimant may recover compensation for aggravation of a pre-existing
condition if the work injury is the prevailing factor causing such aggravation.
Editor’s Note:
It appears the Commission is saying that if Dr. Volarich would’ve opined that
the work injury was the prevailing factor in aggravating her pre-existing
condition, the claim may have been compensable.
ATFL Tear Found Compensable Despite Employer/Insurer’s
Expert’s Opinion that Condition was Not Work Related
In Ambrozetes vs. Smurfit Stone Container
Enterprise d/b/a Rock Tenn, Injury No. 09-111355, the claimant injured
his right ankle when he was struck by falling stock in November 2009. Authorized treatment was initially provided
with BarnesCare who believed the claimant had plantar fasciitis, a condition
that was not work related, and thereafter no treatment was provided. Subsequently, the claimant treated on his own
and underwent surgery after a March 2011 MRI showed a chronic tear of the right
ATFL as well as a split of his peroneal tendon. Dr. Krause, the
employer/insurer’s expert, believed that the claimant sustained a sprain/strain
of the ankle as a result of the work injury and the surgery he underwent was
not required to cure and relieve the effects of the work injury. The claimant presented the testimony of Drs.
Schmidt, Shuter, and Woiteshek, all of whom felt that surgery was required to
cure and relieve the claimant from the effects of the work injury. At a hearing, the ALJ found the claimant’s
experts more credible and awarded reimbursement for the claimant’s past medical
expenses as well as 20% PPD referable to the right ankle. On appeal, the
Commission affirmed.
Employer/Insurer Liable For PTD Benefits Despite
Conservatively Treated Work Injury
In Rickerson vs. Camdenton R-3 School District,
Injury No. 10-020677, the claimant fell while vacuuming steps, sustaining
an injury to his right hip, thigh, and an annular tear in the low back. He treated conservatively. The claimant’s expert, Dr. Koprivica, gave
him restrictions which put him in the medium physical demand level. The claimant was 55 years old as of the
hearing, only attended school through 9th grade, and his vocational
history only included manual labor positions. In 1975 or 1976, the claimant
underwent back surgery which caused him to be out of work for approximately
1-1.5 years but he stated that he fully recovered thereafter and had no
difficulty returning to manual labor after that surgery. Dr. Koprivica assessed 30% PPD referable to
the work injury but believed that the claimant was permanently and totally
disabled based on his vocational profile.
He assessed no preexisting permanent partial disability. Dr. Lennard, the employer/insurer’s expert,
assessed 20% disability, 8% referable to the work injury, and 12% referable to
pre-existing degenerative changes and his prior lumbar surgery. Mr. Swearingin,
the claimant’s vocational expert, testified that she was PTD based on Dr.
Koprivica’s restrictions. Mr. England, the employer/insurer’s expert, believed
that the claimant may be able to return to work or may be PTD, depending on
which of the various physicians’ restrictions were used.
At a hearing, the ALJ found the claimant’s experts
more credible and held that the claimant was PTD as a result of the work injury
in isolation. Liability was imposed solely on the employer/insurer. The ALJ also awarded future medical
treatment. On appeal, the Commission affirmed.
Fund Liable for PTD Benefits Based On Pre-Existing
Degenerative Changes in Operative Note
In Pointer vs. City of Marshall, Injury No.
10-037444, the claimant was injured in May 2010 when a ladder he was
working on kicked out causing him to fall and land on the concrete, injuring
his low back, left leg, and left shoulder.
The claimant had numerous prior injuries including a left total knee
replacement and a fusion from L4-S1.
Following the work injury, the claimant initially received authorized
treatment and was placed at MMI in November 2010. The claimant wanted
additional treatment so he saw his primary care physician, who referred him to
Dr. Highland. Eventually, Dr. Highland performed unauthorized surgery on the
claimant’s back from L3-S1. Dr. Koprivica, the claimant’s expert, opined that
he was permanently and totally disabled based on the work accident alone, as
did the claimant’s vocational expert, Mr. Cordray. However, both Dr. Koprivica and Mr. Cordray
conceded on cross examination that the evidence could sustain a finding that
the claimant was permanently and totally disabled as a combination of his
preexisting conditions and work injury.
At a hearing, the employer/insurer argued that the
claimant merely sustained a sprain/strain as a result of the work injury and
his treatment with Dr. Highland, including his surgery, was not necessary to
cure and relieve the effects of the work injury. The ALJ noted that he found it
odd that both Dr. Koprivica and Mr. Cordray opined that the claimant was PTD as
a result of the work injury in isolation.
The ALJ found the April 2011 operative note of Dr. Highland, who
performed the claimant’s unauthorized back surgery, particularly
persuasive. The ALJ noted that Dr.
Highland’s post operative diagnoses were degenerative disc disease of the
lumbar spine; status post posterior fusion L3-S1; retrolisthesis and spinal
stenosis at L2-3; and foraminal stenosis at L1-2 on the left. The ALJ noted that the first, second, and
fourth post operative diagnoses, per Dr. Highland’s testimony, all pre-existed
the work injury. Additionally, Dr. Highland testified that he could not say
with reasonable certainty that the third post-operative diagnosis was caused by
the work injury. Therefore, the ALJ found that the claimant was PTD as a
combination of the work injury and his preexisting disabilities.
The ALJ also denied the claimant’s request for
reimbursement of the expenses he incurred while treating with Dr. Highland. The
ALJ again focused on the post operative diagnoses of Dr. Highland and found
that the work injury merely caused a sprain/strain. Therefore, the claimant’s treatment with Dr.
Highland, including his surgery, was to address his pre-existing conditions and
not to cure and relieve the effects of the work injury. On appeal, the
Commission summarily affirmed.
PTD Liability Imposed on Second Injury Fund Despite
Claimant’s Post-Injury Return to Accommodated Employment for Three Years
In Green vs. Treasurer of Missouri as Custodian
of Second Injury Fund, Injury No. 07-131505, the claimant was a 57 year
old phlebotomist at the time of her injury.
In September 2007, she was injured at work and sustained injuries to her
left knee, left ankle, and left foot as well as her right elbow. She underwent
knee and ankle/foot surgery. Following the work injury, she did return to work
for the same employer but was moved to less strenuous positions. She was accommodated and was allowed to sit
as needed and placed in positions which required minimal physical
exertion. She never resumed full duty or
responsibilities. In April 2010, her employment was terminated due to inability
to meet the physical requirements of her job, and thereafter, she remained
unemployed.
She did have preexisting conditions and injuries. In 2003, she developed a bulging disc in the
low back and underwent steroid injections. The claimant had also been taking
anti-depressants for a number of years prior to the work injury. He psychiatric expert, Dr. Schmidt, stated
that she had long-standing personality disorder which typically develops in early
adulthood. She also alleged that she had
preexisting bilateral carpal tunnel syndrome although the records of Dr.
Markway indicated that the doctor performed tests and found no evidence of
carpal tunnel syndrome and there were no other notations in the prior medical
records regarding hand or elbow problems.
However, Dr. Koprivica, the claimant’s expert, believed that based on
the claimant’s reports to him and her positive Phalen’s test as noted in the
prior records, that she did have preexisting bilateral carpal tunnel
syndrome. The claimant’s vocational
expert believed that she was permanently and totally disabled due to a
combination of her preexisting conditions and the work injury. (Please note it
does not appear the Second Injury Fund had an expert, so the opinions of the
claimant’s experts were unopposed).
After settling her work injury for 26% disability of
the body, the claimant proceeded to a hearing against the Fund. At a hearing, the ALJ found the claimant did
have preexisting psychiatric disability and preexisting disability in her back
but did not find Dr. Koprivica’s opinion that the claimant had preexisting
bilateral carpal tunnel syndrome persuasive.
The ALJ found that the claimant was PTD as of the time of the hearing
but stated that she failed to show that she was PTD through a combination of
her work injury and preexisting conditions, noting she continued to work
following the work injury. Therefore,
the ALJ only imposed a load on the Fund.
On appeal, the Commission modified the Award and found
that the Fund was liable for PTD benefits.
The Commission basically stated that the claimant’s expert’s opinion
that she was PTD due to the work injury and her preexisting conditions was not
contradicted (again, the Fund did not have a report). Therefore, the Commission found no basis for
rejecting those opinions and held that the claimant was PTD due to her
preexisting conditions and work injury in combination.
Fund Liable for PTD Benefits Because Claimant’s
Testimony and Experts Found More Credible
In Ponticello vs. D&D Distributors a/k/a
Gray Eagle Distributors, Injury Nos. 10-054964 & 11-108606, the
claimant sustained a compensable injury to his right shoulder in 2010 and
underwent surgery. He was released to
full duty on December 13, 2010 by Dr. Burke, the authorized treating
physician. He then attempted to return
to work as a delivery driver, but due to persistent symptoms, took a lighter
job as a forklift operator. In August
2011, the claimant was unloading beer when he slipped, grabbed a handrail and
injured his left shoulder and elbow. He
later underwent surgery for cubital tunnel syndrome as a result of the second
injury. Dr. Volarich, the claimant’s expert, assigned work restrictions
referable to each of his two injuries. At the time of the hearing, the claimant
was 60 years old. He left school in 7th
grade and never obtained a GED. He also attended a special school as a child
because he had learning difficulties.
The claimant was unable to perform math problems, and could not read a
book or write a paragraph. Mr. England,
the claimant’s vocational expert, believed that he was not employable due to
his physical problems and limited academic background. Ms. Kane-Thaler, the employer/insurer’s
vocational expert, believed the claimant was employable in a semi-skilled
category and found multiple jobs that the claimant could obtain. At a hearing, the ALJ found that the claimant
was not PTD but did impose a load on the Second Injury Fund.
On appeal, the Commission modified the Award and found
that the claimant was PTD as a combination of his preexisting injuries and the
last work injury. The Commission stated
that there was a battle of the experts but they found the claimant’s testimony
regarding his complaints and limitations to be persuasive. They also found Mr. England’s opinion more
persuasive than Ms. Kane-Thaler’s opinion because of the claimant’s age, poor
academic background, and lack of transferable skills.
Commission Retains Jurisdiction Over Issues Left Open
in the Stipulations
State ex rel. ISP Minerals, Inc., v. The Labor and
Industrial Relations Commission,
Case No. SC94478 (Mo. S. Ct. 2015)
FACTS: The
claimant sustained an injury at work and filed a claim. He later settled his
claim with the employer/insurer. The stipulations stated the parties would
“leave future related pulmonary med. care open” and further provided for
“[a]uth med. care through Dr. Jos. Ojile...” Subsequent to the settlement, the
employer refused to pay for inhalers prescribed by Dr. Ojile because the
employer’s physician determined those medications were not necessary. (The
employer’s physician is not specified).
The claimant then filed a request for hearing with the
Commission to determine whether the employer was required to pay for the
inhalers. The Commission entered an Order determining that it had jurisdiction
to determine the employer’s liability for future medical care. The employer
then filed a writ asserting that the settlement agreement between the parties
divested the Commission of jurisdiction over the issue of future medical care.
Specifically, the employer cited several cases wherein the Missouri courts held
that after the parties had settled their claims, the Commission no longer has
jurisdiction over those claims.
HOLDING: The
Supreme Court of Missouri reviewed the cases cited by the employer and noted
that those cases were inapplicable. Essentially, the Court stated that in none
of those cases did the parties leave future medical open and later attempt to
litigate that issue. In a fairly short opinion, the Court stated that the
Commission retains jurisdiction over the claim to the extent that the
stipulations left the claim “open.”
60 Day Rule Does Not Apply to Medical Fee Disputes
In Phillips vs. Allied Systems, Ltd. d/b/a
Georgia Allied, Medical Fee Dispute No. 13-00712, Dr. Frevert, the
authorized treating physician, sought reimbursement for medical expenses from
the employer and submitted an affidavit detailing the expenses. The employer objected to admission of the
affidavit, stating that Dr. Frevert did not provide it to the employer at least
60 days prior to the hearing. The ALJ
and Commission both admitted the affidavit over the objection. The Commission stated the requirement that
the employer be provided a complete medical report at least 60 days prior to
the hearing is inapplicable to proceedings to resolve medical fee
disputes. The employer also objected to
the affidavit on the grounds that no foundation had been laid to establish Dr.
Frevert was qualified to give an opinion on the fairness and reasonableness of
the medical charges. The Commission also
disagreed with this argument noting that the doctor had been practicing for 24
years and believed his qualifications enabled him to opine as to the
reasonableness and fairness of the charges.
Therefore, the employer was ordered to reimburse Dr. Frevert for
treatment rendered.
Claimant Failed to Meet Burden on Injuries Which
Occurred After Her IME
In Reynolds vs. Treasurer of Missouri as
Custodian of Second Injury Fund, Injury Nos. 12-000434, 12-019268,
13-048443, the claimant sustained work injuries in May 2008, October 2011,
January 2012, March 2012, and July 2013. The claimant saw Dr. Volarich in May
2011 for an IME, at which time the doctor addressed the claimant’s May 2008
injury to the left ankle but did not address the injuries that occurred in
2011, 2012, or 2013. The claimant
settled all of his claims with the employer/insurer and then proceeded to a
hearing against the Second Injury Fund for his January 2012, March 2012, and
July 2013 claims. At the hearing, the
ALJ basically found that the claimant failed to meet his burden of proof
because he submitted no expert medical opinion regarding those injuries. On
appeal, the Commission affirmed.
ALJ and Commission Can Disregard Wage Statement and
Set Their Own Average Weekly Wage if They Believe that Would Be Fair and Just
In Holmes v. City of Farmington, Injury No.
10-049057, the claimant was a part-time firefighter who was injured when he
was ejected from a firetruck. Prior to his injury, he occasionally filled in
for full-time firefighters but part-time firefighters were not given scheduled
hours so his work schedule varied. The claimant worked a total of 11 hours in
the three months leading up to his work injury. At a hearing, the ALJ
determined that the claimant was “actually employed” for less than two weeks
and the wages of a similarly situated employee should be used. The ALJ then
determined that the wages of a full time fireman should be used to determined
the claimant’s average weekly wage. The ALJ awarded TTD and PPD benefits.
On appeal, the Commission agreed with the ALJ’s
determination of the average weekly wage but disagreed with her reasoning. They
noted that the claimant was clearly employed for two weeks prior to the work
injury and therefore, the wages of a similarly situated employee should not be
used. However, the Commission stated that Statute allows them broad discretion
to set the claimant’s average weekly wage if there are exceptional facts
presented. The Commission stated if the claimant’s actual wages were used in
the 13 weeks leading up to his injury, his TTD rate would be at the statutory
minimum of $40.00 per week. They believed this was an exceptional circumstance
because $40.00 per week was not a fair and just amount and the claimant faced
the exact same risks faced by full-time firefighters. The Commission agreed
that his average weekly wage should be that of a full-time firefighter and
awarded $15,109.32 in unpaid TTD benefits.