MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July
2018 – September 2018
Top Claimant
Failed to Prove Exposure To Cracked Truck Battery at Work Was Prevailing Factor
in Causing Any of His Alleged Symptoms and Health Conditions
Davenport vs. LTI Trucking Services, Inc.,
Injury No. 15-075326
The claimant, a 51-year-old truck driver,
alleged that he suffered multiple injuries as a result of inhaling sulfuric
acid from a leak in a cracked truck battery.
He drove the truck for five months, during which time multiple mechanics
inspected it but found no problems. On
October 5, 2015, the vehicle was inspected again, and one of its batteries was
cracked. The claim was denied, and the
claimant proceeded to treat on his own.
His doctors diagnosed COPD but also noted that he smoked a half pack of
cigarettes per day. Dr. Sifers opined
there was no evidence to show that a car battery leak could cause significant
sulfuric acid toxicity to drivers, and he also opined that the claimant’s
gastritis complaints were better explained by H. Pylori, which was
non-work-related, than toxic exposure.
At a Hearing, the claimant testified that
although he continued to smoke a half a pack of cigarettes per day, he did not
believe his smoking was “heavy enough” to cause COPD, which he related back to
sulfuric acid exposure. The claimant
submitted select pages of a handful of medical reports, but the only one that
clearly addressed causation was Dr. Sifers’ report. The ALJ ultimately found the claimant’s
injury was not compensable, because he failed to prove that exposure to a
cracked truck battery at work was the prevailing factor in causing any of his
symptoms or health conditions. The
claimant appealed to the Commission, which affirmed the ALJ’s decision and
Award.
Top Employee’s Death from Pulmonary Embolus
Causally Related Back to Work-Related Ankle Fracture Due to Confinement to
Wheelchair
Joan
Knutter, Karl Knutter and Michael Knutter vs. American National Insurance, Injury No. 13-020414
On March 25, 2013, the employee sustained a
non-displaced right ankle malleolus fracture, which was treated conservatively,
including use of a wheelchair. Less than
two months later, she died as the result of a pulmonary embolism. Due to the employee’s cremation, there was
not an autopsy. The claimant filed a
Claim for Compensation for death benefits on behalf of the employee.
Doctors disagreed as to whether the
claimant’s ankle injury was the prevailing factor in causing the PE and
death. Dr. Wright opined that the
claimant had underlying risk factors, but the claimant’s immobility following
her ankle injury was the tipping point that caused the PE. Dr. R. Mullins opined there was a lack of
evidence directly tying the ankle fracture to a DVT or blood clot, and he noted
that the claimant had other contributing factors such as obesity, a sedentary
lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which
raised her risk of DVT. Dr. Cross
reviewed the medical records and opined that without an autopsy, it was
impossible to conclude that the claimant had a DVT in the lower extremity that
may have caused a PE to the lungs.
After a Hearing, the ALJ denied death
benefits. The ALJ opined there was no
evidence in the medical records directly tying a blood clot or DVT to the
claimant’s injury or the use of a wheelchair, and the ALJ concluded it would be
pure speculation to causally relate the PE back to the work injury because
there was no autopsy. On appeal, the
Commission reversed the ALJ’s decision and Award. The Commission found the expert opinion of Dr.
Wright credible and persuasive and concluded that it was not coincidental that
the claimant developed a PE just 45 days after being confined to a wheelchair
due to her injury.
Top Co-Employee Liable for Negligence Because He Purposefully Removed Safety
Guard and Instructed Claimant to Clean Machine While in Operation
Brock
vs. Peter Dunne, in his capacity as DAL for Mark Edwards, Deceased, Case No. ED105739 (Mo. App. 2018)
FACTS: On his date of injury,
the claimant worked for JMC Manufacturing, and Edwards was his supervisor. The claimant worked on a lamination machine
that had two sets of rollers and a safety guard, that was attached by hinges
that could be lifted to provide access to the bottom of the rollers if they
needed to be cleaned. The safety guard
prevented objects from becoming stuck between the rollers while the machine was
in operation. On April 30, 2013, Edwards
spotted glue on one of the bottom rollers and removed the safety guard while
the machine was still operating. The
claimant testified that Edwards told him to use a wet rag to squeeze water onto
the roller while simultaneously using a brush underneath the roller to scrape
the glue off of it. He testified that
Edwards did not give him any specific instructions to accomplish the task and
was standing immediately next to him while he completed this task with the
machine running. While squeezing water
onto the roller, the rag became caught in the pinch point between the bottom
rollers and pulled the rag into the rollers along with the claimant’s
thumb. This injury occurred after the
2012 amendment to workers’ compensation statute regarding co-employee
liability. The claimant filed a suit for
negligence in Circuit Court against Edwards, and a jury returned a verdict
finding that Edwards was partially at fault for the injury and awarding
damages.
On appeal, the Court noted the 2012 amendment
to workers’ compensation statute, which states that any employee shall not be
liable for any injury for which compensation is recoverable under workers’
compensation law, unless the employee engaged in an affirmative negligent act
that purposefully and dangerously caused or increased the risk of injury. The Court also noted prior decisions that
held that employers have a nondelegable duty to provide a safe workplace, which
is limited to injuries that are reasonably foreseeable, and a co-employee is
only personally liable if the co-employee breached a duty that was separate and
distinct from the employer’s duty.
Therefore, the claimant had to show that Edwards owed a duty of care
that was separate and distinct from the employer’s nondelegable duty and that Edwards engaged in an
affirmative negligent act that purposefully and dangerously caused or increased
the risk of injury.
HOLDING: The Court held that Edwards breached a duty
of care that was separate and distinct from the employer’s nondelegable duties
because his actions were not reasonably foreseeable by the employer, because he
violated many safety rules, instructions, and warnings against removing the
safety guard. Edwards also created a
hazardous condition by removing the guard and instructing the claimant to clean
the machine while it was still running, and that affirmative negligent act
created an additional danger that would not otherwise have been present in the
workplace. Edwards did not have to
intend to injure the claimant for his actions to be purposeful and affirmative
under the statute. It was enough that he
intentionally removed the guard and directed the claimant to clean the machine
while it was in operation. Therefore,
the Court affirmed the Circuit Court’s judgement.
Top Injury
Sustained While Playing Volleyball on Unpaid Lunch Break Not Compensable
Wilkerson
vs. CMMG, Inc.,
Injury No. 13-104108
The claimant worked for the employer and had
an unpaid lunch break during which he was allowed to leave the premises. There was a volleyball court on the
employer’s premises, and employees often played volleyball and may have been
encouraged by the employer to play volleyball during the lunch hour. On May 23, 2013, the claimant was playing
volleyball during his unpaid lunch break and sustained an injury to his right
hand when he attempted to block a spike.
At a Hearing, the ALJ found the claimant’s
injury was not compensable because he sustained the injury while participating
in a recreational activity that was also the prevailing cause of his injury.
The ALJ noted that the claimant’s lunch break was unpaid, no employees were
ever directly ordered to participate in the volleyball games, and there was no
showing that the injury occurred due to an unsafe condition on the employer’s
premises. Therefore, the claimant
forfeited any benefits under workers’ compensation for injuries sustained as a
result of his participation in the volleyball game. On appeal, the Commission affirmed the ALJ’s
decision and Award.
Top Claimant
Not Injured in Course and Scope Because She Was Equally Exposed to Hazzard or
Risk of Walking on an Even Paved Surface Outside of Work and Had History of
Falls Due to Weakness in Left Lower Extremity
Wall
vs. Bass Pro Outdoor World LLC, Injury No. 15-046929
On July 1, 2015, the claimant, a 66-year-old
employee of Bass Pro, was walking down the main aisle of the fishing department
on an even, paved surface while pushing a shopping cart when she stepped to the
right of the cart, shifted her weight onto her left foot, fell, and injured her
right shoulder. The claimant had a
history of polio to her left foot and leg in 1955 and a left ankle fusion in
1993. She also fell twice on a camping
trip, one month prior to her alleged work injury, after which she had pain in
her shoulder. Following her alleged work
injury, the claimant gave three separate statements, wherein she advised there
was nothing about the floor that caused her to fall, and she “just fell.” There was also a co-worker who was walking
directly behind her at the time of her injury who testified there was nothing
the claimant could have tripped over.
At a hearing, the ALJ found that the claimant
had not sustained an injury in the course and scope of her employment, because
the hazard or risk of her injury was walking on a dry, flat concrete floor,
which was an activity that she performed regularly in her non-employment life,
and there was nothing particular about the location of the fall that was unique
to her work that created a unique exposure to that risk. The ALJ noted that the claimant testified she
regularly walked on identical flooring while shopping outside of work. The ALJ also noted that the claimant had a
history of frequent falls due to weakness in her left lower extremity due to
her childhood polio and prior left ankle fusion. Therefore, the injury was not compensable,
and no benefits were awarded. On appeal, the Commission affirmed the ALJ’s
decision and Award.
Top Claimant Injured in Course and Scope When
Two-Wheel Cart Carrying Personal Items to Work Became Stuck and Caused Claimant
to Fall Because Not Equally Exposed to Risk of Cart Becoming Stuck in Busy
Entryway Outside of Employment
McDowell vs. St. Luke’s Hospital of Kanas
City, Injury No. 16-051794
On
July 13, 2016, the claimant was pulling a two-wheeled cart behind her, which
contained her purse, lunch, medicine, and paperwork related to work. The claimant began using this cart in 2013
following a personal hip replacement, when the cart was suggested by her
supervisor to help her carry items to and from work while using a cane. She denied using the cart for anything
besides travelling to and from work. On
her date of injury, the claimant was exiting the parking garage that was owned
and controlled by the employer. Due to
some congestion, she moved to the right of the path to allow other people to
pass, at which time the wheel of her cart became stuck in the doorframe and
caused her to fall to the ground. She
sustained a left wrist distal radius fracture, and Dr. Langford performed an
ORIF on July 18, 2016. Medical experts
for both parties agreed that the claimant’s fall was the prevailing factor in
causing her fracture. However, the
employer argued that the claimant was not injured in the course and scope of
her employment because the risk source of her injury was the cart that she used
to transport personal items to and from work.
At a
Hearing, the ALJ found that the risk of injury caused by the cart was
work-related because the claimant only used it to haul materials to and from
work, and the personal items she transported, such as her lunch and
medications, were necessary for her to successfully complete her work. The ALJ also noted that another risk of
injury was congestion in the walkway at the exit to the parking garage, which the
claimant commonly encountered due to shift changes around the time that she began
work, which would also be a work-related risk.
Therefore, the employer was ordered to pay PPD, past medical expenses,
future medical referable to hardware removal, and TTD. On appeal, the Commission affirmed the ALJ’s
decision and Award.
Top Claim
Not Compensable Because Claimant Failed to Establish That He Was Working For An
“Employer” Subject to Missouri Workers’ Compensation Law
Mealer
vs. Russ Jackson Transportation and Treasurer of Missouri as Custodian of
Second Injury Fund,
Injury No. 13-085074
The claimant worked as a driver for the
employer and sustained an injury on October 25, 2013, when three front teeth were
broken at the gumline. The claimant was
prescribed partial dentures, and he was subsequently referred for an implant
consultation. During the course of his
treatment, the claimant requested that treatment be provided by the employer,
but the employer refused because it did not carry workers’ compensation
insurance because it had less than five employees. The claimant filed a Claim, which was not
answered, and at a Hearing before an ALJ, the claimant appeared, but no one
appeared on behalf of the employer.
At the Hearing, the ALJ did not award any
benefits. The ALJ found that the
claimant did sustain an injury by accident, but he failed to present any
evidence regarding how many employees worked for the company on his date of
injury. The ALJ also found that the
claimant failed to identify the medical bills as being related to treatment for
his teeth that was related back to the date of injury or that he was at MMI,
and therefore, an Award could not be made for PPD, past medical, or future
medical.
The claimant appealed, and the Commission
affirmed the ALJ’s decision and Award. The
Commission concluded the claimant was not working for an “employer” subject to
Missouri Workers’ Compensation Law. The
claimant failed to present any evidence at the Hearing that would support a
factual finding that the employer had five or more employees on the date of
injury, that the employer made an election to become subject to the provisions
of Missouri Workers’ Compensation Law, or that the employer was engaged in the
construction industry as of the claimant’s date of injury. Therefore, the Commission found that an
employment relationship subject to Missouri Workers’ Compensation Law was not
established, and although the employer failed to file an Answer to the Claim, lack
of subject matter jurisdiction cannot be waived by default.
Top Claimant
was Independent Contractor on Date of Injury Because Used His Tools and Work
Was of Limited Duration and Outside Scope of Employer’s Regular Course of
Business
Densmore
vs. Barnes Industrial Group, Inc., Injury No. 11-076364
The claimant was discussing an employment
relationship with the employer, wherein he was to help start a new division of
the employer’s company involving a new service area. The employer would supply all of the
necessary tools for the projects and secure the work he was to do, and the
claimant was to be an employee as opposed to an independent contractor. The claimant signed an employment contract on
July 6, 2011. However, he made
additional demands on that date, and the employer advised it would consider his
demands and get back with him. The
employer did not sign the contract, and it subsequently decided not to hire the
claimant or open the new division.
However, prior to coming to this decision, on July 16, 2011, the
claimant was working a job for the employer where the claimant used his own
tools because the employer had not yet purchased the necessary equipment to do
this type of work. While installing a
bin, the claimant’s left middle finger was smashed between two pieces of steel
and was partially amputated. The
claimant filed a Claim for Compensation against the employer, and the employer
argued that it was not the claimant’s employer under workers’ compensation.
At a hearing, the claimant argued that he was
already an employee on his date of injury because he had discussed the
employment relationship with the employer and had signed the contract. The employer argued he was not an employee
because it had not agreed to the additional demands he made, and in any event,
the claimant was working as an independent contractor on his date of injury because
he provided the service truck and the tools to perform the work on that
job. Both parties admitted this type of
project was not performed as part of the employer’s regular course of
business. The claimant did receive
payment for four hours of work, but no taxes were withheld.
The ALJ found that the claimant was operating
as an independent contractor on his date of injury because the job was of
limited duration, the employer did not control the claimant’s work because it
had no experience performing that type of work, the employer did not furnish
any of the equipment needed for the job because it did not yet own any, and the
employer paid the claimant a premium for use of his equipment. Therefore, the employer was not liable for
benefits. On appeal, the Commission
affirmed the ALJ’s decision and Award, and it noted that even if the claimant
and employer had entered into an employment agreement, the work the claimant
was performing on his date of injury was not a part of that agreement.
Top Appellate
Court Lacked Authority to Review Temporary Award from Commission Awarding TTD Benefits
AB
Electrical, Inc. vs. Franklin, Case No. WD81156 (Mo. App. 2018)
FACTS: The claimant was injured on December 7, 2015
when he fell off of scaffolding. After a
Hearing on the issue of TTD, the ALJ declined to award any benefits and found
that the claimant had forfeited his right to the same because his use of
marijuana was the proximate cause of his injury. The Commission subsequently reversed the
ALJ’s decision and Award and issued a temporary Award of TTD benefits and past
medical expenses. However, the Award was
deemed “temporary or partial”, and the Commission left the matter open until a
final Award was issued. The employer
appealed the Commission’s decision to the Court of Appeals.
HOLDING: The Court noted that it must have express
statutory authorization to review workers’ compensation cases, and under Workers’
Compensation Law, it is only allowed to review final Awards. The Court noted a previously recognized
exception to that general rule, wherein Courts have previously found that they
had authority to review temporary Awards where the employer/insurer denied any
liability for the injuries. This
exception was based on the fact that Appellate Courts have authority to review temporary
or partial Awards of PTD benefits and a Missouri regulation finding that the
Commission has authority to review Awards where benefits were granted but the
employer/insurer disputed that they had liability for the injury. The Court noted that this exception was
created under liberal construction of the Workers’ Compensation Law, and after
the 2005 amendments, all workers’ compensation statutes must be strictly
construed. The Court held that strict
construction eliminated the prior exception.
Therefore, Appellate Courts do not have authority to review temporary or
partial Awards that are not for PTD, even
if the employer/insurer denied any liability for the injury. Notably, the Court did not address the merits
of the case, and this matter could still be appealed after the Commission
renders a final Award in this matter.
Top No
Award of Prejudgment Interest Permitted Under Strict Construction of
Missouri Statute Governing Medical
Fee Disputes
Goss
vs. St. Luke’s Hospital, Injury
No. 14-01645
The claimant underwent a brain MRI at St.
Luke’s Hospital on March 20, 2015 in the context of a workers’ compensation
injury. The provider filed an
Application for Payment of Additional Reimbursement with the Division on May
25, 2017. On June 30, 2017, the Division
mailed a Notice of Evidentiary Hearing on the Application to the provider and
employer/insurer. The employer/insurer
did not file an Answer to the Application or attend the hearing. The ALJ issued a default judgment against the
employer/insurer finding them responsible for unpaid medical fees as well as
prejudgment interest on those fees in the amount of $480.60, and the ALJ also
awarded attorney’s costs and fees, finding that the employer/insurer defended
this matter without reasonable grounds by failing to respond to or Answer the
Application or appear for the hearing.
The employer/insurer appealed the ALJ’s
decision and Award arguing that the insurer was not provided notice of the
hearing pursuant to statue, and award of prejudgment interest was against
strict construction of Missouri statute.
The Commission modified the ALJ’s decision and Award with respect to
prejudgment interest and found that under strict construction, statute did not
provide for the award of prejudgment interest in favor of the medical provider
in the context of an Application for Payment of Additional Reimbursement of
Medical Fees. It specifically found that
a prior Court decision that authorized prejudgment interest in favor of
employees with respect to unpaid medical fees, did not apply to medical fee
disputes and the question of prejudgment interest on unpaid medical fees to be
made to a medical provider.
Top Employer
Not Prejudiced By Lack of Timely Written Notice Because It Had Actual Notice of
Accident and Associated Injury, and Claimant Did Not Have to Identify All
Specific Body Parts Injured When Providing Actual Notice
Harley
Davidson Motor Company, Inc. vs. Jones and Treasurer of the State of Missouri
Custodian of Second Injury Fund, Case No. WD81155 (Mo. App. 2018)
FACTS: The claimant sustained an injury while
working for the employer on July 13, 2011 while using a torque gun that jerked
his body. On his date of injury, he
reported an injury to his right elbow and was directed for medical care by the
employer. He subsequently developed back
pain that worsened over time. He
mentioned his back symptoms to the treating doctor in September 2011 and was
referred to Dr. Drisko, who related his back complaints back to the work
accident. The claimant then contacted
the employer to notify them of Dr. Drisko’s causation opinion. The employer accepted the right elbow injury
but denied the back injury, and the claimant proceeded to treat on his own.
The claimant filed a claim for the back
injury, and after a Hearing, the ALJ found both the right elbow and low back
injury compensable. The employer/insurer
appealed, and the Commission affirmed the ALJ’s decision and Award with a supplement
opinion. The employer/insurer appealed
the Commission’s decision and argued that the Commission erred because the
claimant failed to provide timely written notice of the specific injury to his
lower back.
HOLDING: The Court affirmed the Commission’s decision
and Award. It reasoned that the claimant
initially had the burden to prove the employer/insurer were not prejudiced by
lack of timely written notice of the back injury. When he showed that the employer had actual
notice of the accident and the elbow injury on the date of injury, the burden
shifted to the employer/insurer to show that it was prejudiced. However, the employer/insurer did not present
any evidence showing that it was unable to timely investigate the accident or
that lack of written notice cause an exacerbation of the injury. The Court held that the employer/insurer was
not prejudiced because it had actual notice of the elbow injury, and the
claimant did not need to identify all of the specific body parts that were
injured in the accident.
Top Employer
Responsible for PTD after Psychological Injury.
Employer Not Prejudiced by Lack of Written Notice, Because Employer had
Actual Notice of Accident and Injury
Fronek
vs. Production Delivery Services, Inc. and Treasurer of Missouri as Custodian
of Second Injury Fund,
Injury No. 11-106035
The claimant, a 63-year-old truck driver, was
injured on April 10, 2011 when he was struck by a vehicle in a parking
lot. The accident was captured on
security camera footage, and there was also a witness present, who notified the
claimant’s supervisor. The claimant was
seen once at the hospital but did not request any additional treatment. An HR officer spoke with the claimant a few
days after the accident and filed a report.
The claimant developed headaches as well as behavioral changes including
a fear of cars and driving, irritability, and forgetfulness. He continued to work without additional
medical care from April to October 2011.
In October, he was referred to a neurologist, who diagnosed
post-concussion syndrome and PTSD and recommended psychiatric care. The claimant then reported a work injury and
submitted bills for his medical treatment.
The employer/insurer admitted it had actual notice of the claimant’s
accident and injury, but it argued that it did not have written notice of a work injury because the claimant never
said he was “on duty” at the time of the accident, and it also argued it did
not have written notice of a head injury within 30 days of the date of
injury. The claimant continued to work,
but he had anger and disciplinary problems, and he was ultimately
terminated. He has not worked since
then.
The employer/insurer did provide medical
treatment after the claimant’s termination.
The authorized providers diagnosed post-concussion syndrome and
headaches, PTSD, major depression, and balance, memory, and sleep
problems. One of those providers, Dr.
Ferguson, opined the claimant could not return to working as a driver due to
his PTSD, and he would need ongoing counseling.
Mr. Weimholt evaluated the claimant at his attorney’s request and opined
he was unemployable due to his sleep and memory problems and behavioral issues
that were related back to his work injury as well as his limited education.
Following a Hearing, the ALJ found there was
no prejudice for lack of written notice because the employer had actual notice
of the accident and injury, and the claimant notified them of his psychological
injury within days of his diagnosis in October.
The ALJ also held that the claimant was PTD as a result of his
psychological injuries alone and found the employer/insurer responsible for the
same.
On appeal, the Commission affirmed the ALJ’s
decision and Award. The Commission held
that the employer had actual notice of the claimant’s accident and injury and
was not prejudiced by lack of written notice.
The Commission reasoned that statute requires the employer be notified
regarding the time, place, and nature of an injury, but a claimant is not
required to provide his employer with a medical diagnosis or keep the employer
apprised of symptoms and/or opinions regarding the etiology of said symptoms.
Employer
Responsible for PTD After Claimant Developed CRPS Following Surgery
for Right Biceps Tendon Tear
Odom
vs. Customer Engineering Services, LLC, Injury No. 12-046620
The claimant, a 56-year-old with an
Associate’s Degree in Photo Production Technology and a history of working as a
field support technician for photo labs, sustained an injury on June 21, 2012
while working for the employer. He was
working with two other people to move a large ink jet photo printer when his
right elbow popped. He treated with Dr.
Roeder, who diagnosed tendinopathy and a partial right distal biceps tendon
tear and performed right elbow surgery.
The doctor subsequently diagnosed CRPS of the right upper extremity and
referred the claimant for ganglion blocks.
The claimant also treated with Dr. Lennard, who placed him at MMI on
August 26, 2013. He proceeded to treat
on his own and underwent pain management.
The claimant did also have pre-existing disabilities, including a left
knee injury for which he underwent surgery in 2010.
Dr. Paul evaluated the claimant at his
attorney’s request and found him PTD as a result of the work injury alone due
to CRPS and recommended permanent restrictions of lifting no more than five
pounds with the right hand on occasion.
Dr. Lennard recommended permanent restrictions of no repetitive use or
lifting over five pounds with the right arm due to the work injury alone, and
the doctor noted that the claimant was taking Fentanyl for CRPS, which would
cause drowsiness and lethargy. Mr.
Eldred, a vocational rehabilitation consultant, found the claimant unemployable
as a result of the work injury alone due to his constant pain and narcotic pain
medications. Ms. Brokover evaluated the
claimant on behalf of the employer/insurer and opined that based on the work
restrictions of Dr. Paul, the claimant was unemployable in the open labor
market. The claimant testified that he had
continued chronic pain and instability in his knee and unpredictable pain that
give him good days and bad days, and when taking his narcotic pain medication,
he was unable to drive and had difficulty maintaining a train of thought.
After a Hearing, the ALJ found the
employer/insurer responsible for ongoing pain management for CRPS due to the
work accident. The ALJ found the
claimant was PTD as a result of the work injury alone and noted he had
unpredictable chronic pain that required opioid medication that caused
cognitive deficits and had permanent restrictions from Dr. Lennard and Dr.
Roeder. On appeal, the Commission
affirmed the ALJ’s decision and Award.