Simon Law Group, P.C.
720 Olive Street, Suite 1720, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW
UPDATE
July 2019 – September 2019
Claim Not
Compensable Because Accident Caused Aggravation of Pre-Existing Condition but
not a New Injury
Jones
vs. Orbital ATK (f/k/a ATK Alliant Techsystems, Inc.), Injury No. 13-031100
The
claimant was walking at work when he stepped in a hole in the plant floor and
twisted his right knee. He previously
underwent right knee surgery in 1999 for an ACL tear. After his work injury, treatment was
authorized with Dr. Samuelson, who noted significant DJD in the knee and
findings indicative of chronic ACL deficiency, and the doctor opined that the
claimant’s current condition was the result of degenerative changes and prior
trauma.
Dr.
Strong examined the claimant at the request of the employer and opined that the
claimant had a severely arthritic knee and would require a total knee
replacement. However, Dr. Strong did not
relate the need for a total knee replacement back to the work accident, which
she opined caused a knee contusion. Dr.
Strong opined that the claimant would have needed a knee replacement at some
point in time irrespective of the work accident. At his attorney’s request, the claimant was
examined by Dr. Stuckmeyer, who opined that the claimant’s physical exam was
suspicious for a medial meniscus tear and recommended surgery.
At
a Hearing, the ALJ held that the claimant did sustain an accident at work. However, the ALJ found the opinions of Dr.
Samuelson and Dr. Strong more persuasive than Dr. Stuckmeyer and held that the
claimant did not sustain an injury as the result of the accident at work but
instead had aggravated his pre-existing knee condition. The ALJ differentiated this claim from the
decision in Tillotson by noting that the claimant in Tillotson
had sustained meniscus tear as a result of his accident, but Dr. Strong and Dr.
Samuelson credibly opined that the claimant sustained only an aggravation of his
pre-existing condition without a new injury.
Therefore, the ALJ found that the claimant had not sustained a
compensable injury as a result of his work accident and denied any benefits. On Appeal, the Commission affirmed the ALJ’s
decision and Award.
Claimant
Not Injured in Course and Scope of Employment After Falling in Parking Lot Because Equally Exposed to
Hazard or Risk of Tripping on Parking Island Outside of Work in Normal
Non-Employment Life
Nugent
vs. State of Missouri, Missouri State University, Injury No. 17-011083
On
the date of injury, the claimant drove to a business center where she went to
the Post Office on a personal errand.
She then decided to visit some work colleagues whose offices were
located in the same business center to discuss something work-related. After leaving the Post Office, she drove her
car to the other end of the parking lot to be near the door of the Missouri
State University offices. As she was
walking in the parking lot to go to those offices, she tripped on a parking
island and sustained an injury to her wrist.
At
a Hearing, the claimant testified that she lost her balance as she turned to
head towards the building. She was not
carrying anything work-related at the time.
When asked whether there was anything defective in the area, she
answered, “No! I missed a small curb that was clearly marked.” Testimony also established that the claimant
regularly used parking lots at Wal-Mart, an Urgent Care Clinic, a U.S. Bank,
and two churches, and she also used the parking lot where she fell for
non-work-related reasons such as using the Post Office. Testimony established that these parking lots
also had parking islands that were in similar or worse condition than the
parking lot where the claimant fell.
The
ALJ found that the claimant was not injured in the course and scope of her
employment because the hazard or risk of injury was the parking island in the
parking lot where she fell, which was a parking lot that she used outside of
work in her normal non-employment life, and she was also routinely exposed to
similar parking islands in similar parking lots in her normal non-employment
life. Therefore, the ALJ held that the
employee was at least equally exposed, if not more exposed, to parking lots
with similar parking islands outside of and unrelated to her employment in her
normal non-employment life. The ALJ also
found that there was no particular defect to the parking island which caused an
increased hazard or risk of injury greater than that in the parking lots she
was exposed to outside of work. Therefore,
this injury was found to be not compensable.
On Appeal, the Commission affirmed the ALJ’s decision and Award.
Editor’s
Note: Neither the ALJ’s opinion nor the Commission
opinion discussed whether the parking lot was owned or controlled by the
employer.
Court
Reversed Commission Decision and Found Claimant Injured in Course and Scope of
Employment Because the Risk or Hazard of Injury Was Slipping on Dirt/Ice on
that Hallway Floor, and Claimant Was Injured in a Hallway Owned and Controlled
by Employer
Annayeva
vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri Custodian
of the Second Injury Fund, Case No. ED107558 (Mo. App. 2019)
FACTS: On January 8, 2013, the claimant, a teacher,
sustained an injury when she slipped and fell.
She had just entered the school building using a general entrance and
was carrying student papers and lesson plans, although she was not “clocked in”
at the time. She did not see any defects
in the linoleum tile floor, and when filling out an investigation report, she
did not mention any ice, salt, or dirt on the floor that caused her to slip and
stated that she “could not determine the cause of the accident.” The claimant alleged injuries to numerous body
parts as well as a psychological injury.
At
a Hearing, the ALJ found the claimant’s testimony was not credible and denied
her claim due to lack of causation. On
appeal, the Commission affirmed the ALJ’s Award, but based on the grounds that
the claimant was not injured in the course and scope of her employment. The Commission found that nothing about the
claimant’s work caused her to fall, and the hallway was “normal” where she
fell. When specifically asked by her
attorney, the claimant testified that the floor was dirty and moist, but the
Commission did not find her testimony credible and noted that none of the
medical records noted any hazardous conditions on the hallway floor. Therefore, the Commission found that the only
risk source was that of walking on an even flat surface, to which the claimant
was equally exposed in her normal non-employment life, and she failed to show
that her injury arose out of and in the course and scope of employment.
HOLDING: On appeal, the Court of Appeals reversed the
Commission’s decision. The Court held
that when the Commission rejected the claimant’s testimony regarding the
condition of the floor and found it was not credible, its opinion was based on
conjecture and unsupported by sufficient competent evidence in the record, and
the Commission’s Award did not provide a reasonable or substantial basis for
refusing to believe the uncontradicted testimony of claimant. With respect to the medical records, the
Court also held that medical records were meant to provide proof of medical
history and diagnosis, not proof of a hazard or risk present on the floor where
the claimant fell. Therefore, the fact
that they did not mention dirt or ice on the floor was not persuasive. The Court held that the claimant was injured
in the course and scope of her employment because the risk of her injury was
not simply walking on an even surface, it was walking in the employer’s hallway
which was dirty with dirt and ice, where she walked every workday as a function
of her employment. The Court also found
that it did not matter that the claimant had not yet clocked in at the time of
her injury because the employer owned and controlled the hallway where she
fell. Therefore, the Court reversed the
Commission’s decision and remanded the matter back to the Commission for
additional findings with respect to medical causation.
Court Affirms Commission’s
Decision that Claimant Not Employee of Ginger C, and Ginger C Not a Statutory
Employer
Hayes vs. Ginger C, LLC and
Treasurer of the State of Missouri Custodian of the Second Injury Fund,
Case No. WD82256 (Mo. App. 2019)
FACTS: Ginger C (GC) worked as a rental business and
did not perform construction or have any employees. It did hire three contractors, including the
claimant, to repair and remodel buildings as needed. On June 26, 2013, the claimant and two other
contractors were performing a concrete job and sustained alkali burns from the
concrete. GC did not have workers’
compensation insurance. The claimant
sought PPD benefits from GC and the Fund.
At a Hearing, the ALJ
expressly found the claimant was not a credible as a witness, because his
testimony was exaggerated and inconsistent with his deposition testimony and
the testimony of the other two contractors and Mr. Asmar, GC’s owner. The ALJ found that credible testimony
established that GC did not issue W-2’s and instead issued 1099’s to each
contractor, Mr. Asmar was never present at the job sites and did not control or
direct the way that the claimant or other contractors performed their work, the
claimant owned and used his own tools, he could choose the hours he worked, and
he could turn down maintenance calls if he wanted. Therefore, the ALJ found that the claimant
was an independent contractor and not an “employee” under workers’
compensation. The ALJ also found that GC
was not an “employer” under workers’ compensation because GC’s regular business
was apartment rental, not construction, and it did not have any employees. Therefore, the ALJ denied any benefits. On appeal, the Commission affirmed the ALJ’s
Decision and Award.
HOLDING: On appeal, the claimant argued that he was an
employee of GC. The Court noted that the
key to determining whether a claimant is an employee or an independent
contractor is the amount of control exercised by the alleged employer, and the
Commission was correct in determining that GC did not exercise sufficient
control over the claimant’s work to render him an employee. The claimant also argued that GC was his
statutory employer at the time of his injury.
The Court noted that the claimant was performing work for GC pursuant to
a contract, and he was injured while performing work on GC property. Therefore, GC may be a statutory employer if
the work the claimant was performing at the time of his injury was in the usual
course of GC’s business. The Court noted
that the claimant was injured while performing concrete work, and there was no
evidence that concrete work was routinely performed by GC on its rental
properties. Therefore, there was
insufficient evidence to find that GC would have been required to hire
permanent employees to perform the concrete work absent the agreement with the
claimant, and the claimant did not sustain his burden to establish a statutory
employment relationship with GC. The
Court affirmed the Commission’s decision and Award.
Employer Liable for Shoulder
Replacement Despite Pre-Existing Condition Because Surgery Reasonably Required
to Cure and Relieve Claimant of Effects of Work Injury
Persley vs. The Parking Spot, Injury
No. 14-079573
On September 4,
2014, the claimant fell and sustained an injury to his left shoulder. X-rays and an MRI of the shoulder showed
significant pre-existing conditions.
When the employer denied treatment, the claimant underwent unauthorized
treatment with Dr. Satterlee, who performed a reverse total shoulder
replacement on May 6, 2015. Dr.
Stuckmeyer examined the claimant at his attorney’s request and opined that he
had pre-existing asymptomatic rotator cuff pathology as well as an acute injury
due to the work accident, and he opined that the procedure performed by Dr.
Satterlee was reasonably required to cure and relieve the claimant from the
effects of the work injury. Dr. Clymer
agreed that the claimant had significant pre-existing conditions in the
shoulder and opined the work accident aggravated the pre-existing condition and
possibly caused some additional rotator cuff tearing and joint surface
damage. Dr. Clymer agreed that the
shoulder replacement was the most reasonable approach given the claimant’s
chronic degenerative problems, but he opined the prevailing factor causing the
need for surgery was the claimant’s pre-existing condition rather than the work
accident.
At a Hearing,
the employer argued that it was not responsible for the medical treatment the
claimant underwent with Dr. Satterlee because the claimant’s pre-existing
chronic condition was the prevailing factor in causing the need for a total
shoulder arthroplasty, not the work accident.
However, the ALJ noted that the prevailing factor was the incorrect
standard. Instead, pursuant to the
Court’s decision in Tillotson, an employer is required to provide
treatment reasonably required to cure and relieve the effects of the
injury. The ALJ opined that the shoulder
replacement was reasonably required to cure and relieve the claimant from the
work injury, and therefore, the employer was responsible for paying for that
treatment. The ALJ ordered the employer
to pay unpaid medical bills, provide future medical care, and pay TTD and PPD
benefits. On Appeal, the Commission
affirmed the ALJ’s decision and Award.
Injuries Sustained When Tripped by
Authorized Treatment Provider Were Compensable
Schoen vs.
Mid-Missouri Mental Health Center and Treasurer of the State of Missouri,
Custodian of the Second Injury Fund, Case No. WD82258 (Mo. App. 2019)
FACTS:
The claimant initially complained of throat and eye irritation
after exposure to Cypermethrin on May 8, 2009.
She sought emergency treatment on her own and returned to work
immediately without limitations in regards to that exposure. She had continuing complaints and was sent by
the employer to Dr. Runde for evaluation on May 22, 2009. While at Dr. Runde’s office, a person with a
small dog was sitting in the waiting room.
The claimant was being escorted to an exam area for pulmonary function
tests when Dr. Runde attempted to walk around the dog and accidentally tripped
the claimant, causing her to fall. She
alleged injuries to her cervical and lumbar spine, left shoulder, and left knee
as a result of her fall.
At
a hearing, the ALJ found that the injuries the claimant sustained when she fell
in Dr. Runde’s office were compensable injuries because she sustained them
while seeking authorized treatment for the chemical exposure. The Commission reversed the ALJ’s decision
and Award and held that the injuries the claimant sustained at Dr. Runde’s
office were not compensable, despite the fact that the claimant was undergoing
authorized treatment, because those injuries were not the direct result of any
necessary medical treatment for her primary injury, the Cypermethrin exposure.
HELD: On appeal, the Court of Appeals reversed
the Commission’s decision and found that the injuries the claimant sustained in
Dr. Runde’s office were compensable. The
Court reasoned that the claimant was tripped while following her doctor’s
directive, and being directed to and from other locations for testing is a part
of authorized medical treatment. Since
the claimant was injured while undergoing authorized medical treatment, her
injuries were a natural and probable consequence flowing from the original
injury, and the original injury was the prevailing factor in causing her
additional injuries. The Court remanded
the matter back to the Commission.
