Causation

March v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD84377 (Mo. App. 2021)

FACTS: Around April 2015 the claimant started having problems with his upper extremities. He treated with Dr. Winston who concluded that the claimant’s bilateral upper extremity complaints were work-related and provided the claimant an injection to the right shoulder as well as carpal tunnel releases. The claimant settled his claim for his bilateral upper extremity issues for 27% of the body. The claimant also had various other injuries and health conditions leading up to the last date of the injury. However, the most significant was his morbid obesity which caused symptoms of pain radiating to both legs and swollen ankles.

Despite this comorbidity, Dr. Hopkins opined that the claimant’s job duties were the cause of his symptoms and he assessed 30% disability to each leg plus a 15% load. He further concluded that a combination of the claimant’s preexisting condition and his disability from his job duties combined with his primary bilateral upper extremity claim resulted in PTD. The ALJ found that Dr. Hopkins’ opinion was not credible and therefore the claimant did not meet his burden to establish Fund liability. The claimant appealed to the Commission who rejected the ALJ’s finding and found Dr. Hopkins to be credible. However, a majority of the Commission’s three-member panel concluded that it was equally likely that the claimant’s pre-existing injuries resulted in the claimant’s PTD and denied benefits. The claimant appealed.

HOLDING: The claimant argued that the issue determining Fund liability was one of causation and there was only one uncontradicted expert medical opinion on the topic and the Commission credited that opinion as plausible but then erroneously asserted its own opinion to deny compensation. The Court agreed noting that the conclusion that it was equally likely the claimant’s PTD resulted from his pre-existing injuries was unsupported by any expert testimony and was instead simply a lay conclusion, and therefore could not constitute substantial evidence to support the Commission’s Award. The Commission’s decision was therefore reversed.

Claimant Failed in Burden of Persuasion as Commission Had Province to Believe or

Disbelieve Witness

Anttila v. Treasurer of the State of Missouri Custodian of the Second Injury Fund Case No. SD36826 (Mo. App. 2021)

FACTS: The claimant worked as a truck driver. In 1994, he suffered on the job injuries to his left shoulder and left leg while working for Freymiller and made a full recovery. He then underwent chiropractic treatment in 2009 and 2010 for maintenance and then in 2011 and 2012 for complaints of neck, thoracic spine and left upper extremity pain. On January 3, 2014, he attempted to remove a pin from a trailer and felt a crunch in his neck and on the drive back, he began experiencing severe pain in his left arm and neck. The employer referred him to Dr. Mauldin who believed the claimant’s injury was preexisting regarding his shoulder and released him from care. He then treated on his own and underwent a cervical fusion on June 12, 2014 to address a C5-6-disc herniation.

In August 2015, he filed a Claim for Compensation. At the employer’s request, he was examined by Dr. Chabot who opined that the claimant’s cervical spine injury was work related and rated disability of 15% to the body as a whole, 5% of which he attributed to the claimant’s preexisting condition and noted he was able to return to work. The claimant filed an Amended Claim also alleging an occupational disease to the neck due to his job duties driving a truck. The claimant obtained his own physician, Dr. Paul, who examined the claimant and opined that he sustained 50% disability to the body as a whole as a result of all conditions relative to his employment with 15% due to his job duties and 35% for specific accident and resulting fusion. Dr. Paul also noted he sustained a 20% disability at the wrist for left traumatic carpal tunnel syndrome also as a result of the January 3, 2014 injury, and concluded that the claimant was PTD due to a combination of effects of the January 3, 2014 injury with prior disabilities. He was evaluated at his own request by a vocational expert, Mr. Eldred, who opined that the claimant was PTD as a result of his January 3, 2014 injury in isolation.

The ALJ found the claimant sustained 15% PPD to the cervical spine for his last occupational disease injury, 35% PPD of the cervical spine and 20% PPD for the left carpal tunnel syndrome both as a result of the specific injury. The ALJ also found he was PTD as a result of a combination of the occupational exposure injury of January 3, 2014 and the preexisting traumatic accident, which occurred earlier that day and found the Fund liable for benefits. The Fund appealed and the Commission denied the claim because he failed to demonstrate a preexisting condition that met the requirements of Section 287.220.3 as the preexisting disability (5% of the cervical spine per Dr. Chabot) did not meet the threshold requirement of a minimum of 50 weeks of PPD needed to combine with the specific accident. The claimant appealed.

HOLDING: The claimant argued that the Commission erred in reversing the ALJ’s finding of two separate claims. The Court did not agree and noted that the parties stipulated as to occupational disease and the traumatic injury. The claimant also argued that the Commission erred in finding that her was not PTD. The Court noted that it is the province of the Commission to believe or disbelieve witnesses and this was a battle of the experts. The Award of the Commission was affirmed.

Employer/Insurer Responsible for PTD for 2015 Low Back Injury Despite Subsequent Neck Injury in 2016 Because Despite Continuing to Work Claimant was Highly Accommodated After 2015 Injury

Watson v. Tuthill Corporation & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-036120

The claimant, a 58-year-old Senior Service Technician, sustained an injury to his low back. He had worked for the employer for 28 years. His job did involve heavy lifting. Dr. Cunningham, the authorized treating physician, performed an L4-5 fusion. Thereafter, he treated with Dr. Woodward. On February 1, 2016, the claimant sustained a subsequent injury involving his neck, for which he treated conservatively. He returned to work from January 2016 until April 20, 2016, when he retired. He was subsequently placed at MMI for the 2015 low back injury on July 18, 2016. The claimant did have various preexisting conditions, including a right shoulder surgery, two low back strains, a left shoulder surgery, a hernia which was repaired and a prior right elbow injury, all of which were worked related. Dr. Koprivica opined that the claimant was permanently and totally disabled as a result of the 2015 date of injury, as did Mr. Eldred. Ms. Sprecker testified on behalf of the employer and found that the claimant was employable. Dr. Woodward, the claimant’s authorized treating physician, did not recommend any continued pain medications or treatment.

At the hearing, the 2015-2016 injuries were tried simultaneously and therefore, the employer argued that the true last injury was the 2016 neck injury. However, the judge disagreed and noted that the 2015 injury caused significant disability and the subsequent neck injury was quite minor. The judge did note that the claimant admitted to having pains and limitation accumulating through the years but after the 2015 date of injury, he needed more than a modification or slight accommodation to continue working. It was noted that after he returned to work after the 2015 date of injury, he never performed his job in the manner any employer would have expected on the open labor market, which included frequent days off and taking multiple breaks to lay down during the day due to his back pain. The judge noted that it was abundantly clear from the record that due to the 2015 lumbar injury, the claimant was not capable of returning to work on the open labor market. In light of this, the employer was found responsible for perm-total benefits. The employer was also responsible for future medical that was reasonably required to cure and relieve the claimant from the effects of the work injury. The employer appealed and the Commission affirmed.

Employer/Insurer Responsible for PTD Due to Conservatively Treated Low Back Injury, Despite Claimant’s History of a C3-C7 Cervical Fusion

Harper v. Springfield Rehab and Health Care Center/NHC Health and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 18-057914

The claimant, a 69-year-old registered nurse, sustained an injury to her hip/low back on June 22, 2018. She did have a prior neck injury, which required a fusion from C3 to C7 in 2013. She noted that due to this, she had limited strength in her arms so she used her hip to push the cart. She felt a pull in her back but continued to work her 12-hour shift. She testified that within a few hours, she had difficulty walking, which became increasingly worse throughout the shift. After her shift, she went home, took Tylenol and went to bed due to her discomfort. During her deposition, she did admit that she did not feel immediate pain but rather the pain began as she was walking later in her shift. She was not asked if she felt a strain or a pull during her deposition but at the time of the hearing, she testified that she felt a pull or a strain in her back at the time of the incident. She received conservative treatment and underwent an MRI, which showed chronic degenerative spondylosis of the lumbar spine. Therefore, she was referred to her primary care physician. She did undergo epidural injections and attended a psychological consultation. Dr. Koprivica opined that she was totally disabled as a result of the work injury in isolation.

Dr. Cantrell testified on the employer’s behalf and concluded that there was no accident or injury. He testified that a pulling sensation in the muscle was not evidence of an injury. However, he noted that the claimant’s treatment with Dr. Gil could be considered reasonable for a temporary aggravation of a preexisting condition but her subsequent treatment was not work related. Mr. Eldred testified on the claimant’s behalf and found that him PTD based on the back injury alone. Mr. Hosutt testified on the employer’s behalf and found that the claimant was employable. However, the ALJ noted that he had not reviewed the depositions of the IME physicians and was not aware of Dr. Koprivica’s testimony that the claimant was not capable of full sedentary work and that it was medically appropriate for the claimant to lie down during the day to relieve pain.

At a hearing, the ALJ found that the claimant was credible and found that she sustained unusual strain in her lower back when she pushed the heavy medicine cart on June 22, 2018. The ALJ also found Dr. Koprivica credible and did not believe that Dr. Cantrell was credible, based on the fact that the doctor noted that she did not sustain an injury due to not feeling immediate pain. However, the claimant described a pull in her back and experienced pain thereafter and therefore, pursuant to the statute, this would be an unusual strain.

The ALJ noted that the employer/insurer argued that if there was a work accident, then the claimant sustained nothing more than a soft tissue injury and that the claimant merely took a well-deserved retirement when she quit work on November 14, 2018. The ALJ did note that this was a close case but she found the claimant and Dr. Koprivica credible and also noted that the claimant was rehabilitated from severe cervical disability to return to work full time as a nurse and she also attempted to continue working after her release after the 2018 date of injury and therefore, this would hardly suggest that she simply was desirous of retirement. The judge found that the claimant was PTD from the work injury in isolation and believed that the employer was responsible for future medical treatment. The employer appealed and the Commission affirmed.

Claimant PTD Due to Hearing Loss and Preexisting Disability so Fund Responsible for Benefits

Fields v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD 109251 (Mo. App. 2021)

FACTS: The claimant, a ramp agent, had various low back injuries, the first on August 17, 2011 and the second on May 17, 2012 which he testified worsened his low back symptoms from his initial injury. He also reported that he hurt his back at work on June 29, 2012 and then again on November 9, 2012. He also testified he began noticing problems with his hearing loss in the last few years of his employment and testified to other injuries including one to his right shoulder and his right thigh. He also reported a fracture to his C7 vertebrae after an auto accident and that same year was diagnosed with depression and anxiety.

The claimant brought multiple claims against the Fund and an ALJ denied compensation for the claimant’s August 2011, May 2012, June 2012 and November 2012 PPD claims for his back injuries and also denied compensation for his November 2012 PTD claim for his back and his PTD claim for his hearing loss. The claimant appealed to the Commission who reversed the ALJ’s Award as to the claimant’s May 2012 back injury and awarded PPD benefits but denied PPD for his August 2011, June 2012, and November 2012 back injuries and his alternative PTD claim for his November 2012 back injury and his PTD hearing loss claim. The Commission was not persuaded by the claimant’s physician who acknowledged that his disability ratings regarding the claimant’s back injuries were a “guess” and noted that nothing in the record suggested his hearing loss prevented him from performing his job duties. The claimant appealed.

HOLDING: The claimant argued that there was not sufficient evidence to support the Commission’s denial of the claimant’s PPD and PTD back claims because he was not required to establish an exact percentage of disability for each primary injury and he established the nature and extent of each primary injury by overwhelming evidence. The Court disagreed, noting that the Commission was presented with opposing expert opinions and noted that the claimant’s expert could not apportion the injuries individually and instead equally divided his disability rating among the back injuries which he conceded was a guess while the employer’s expert concluded that the claimant did not suffer permanent disability of any kind except from the May 2012 back injury. The Court noted the Commission was free to rely on the opinion deemed the most credible and persuasive.

The claimant argued that the Commission’s decision denying his PTD for his hearing loss was erroneous. The Court agreed. The Commission concluded that if the claimant was PTD it was based on prior physical injuries without consideration of his hearing loss but the Court noted that this was inconsistent with its own Award finding the claimant was not permanently and totally disabled based on his last back injury and his preexisting disabilities. The Commission’s decision finding the claimant was not PTD based on a combination of his hearing loss and preexisting disabilities was reversed while the Commission’s decision denying PPD for his back injuries and PTD for his last back injury were affirmed.

When Challenging Award All Evidence Favorable to Factual Proposition Necessary to Sustain Award Must be Presented

Patrick v. Mulvaney and City of Monett, Case No. SD36956 (Mo. App. 2021)

FACTS: In 2015, the City of Monett began a project to renovate City Hall. The City Council member, Jerry Dierker was assigned to coordinate the project. He hired contractors including Derek Mulvaney, who did business as Mulvaney Construction. The claimant began working for Mulvaney sometime in 2015 and in March 2016 he suffered a serious injury to his left hand resulting in tendon damage to several fingers, requiring surgery. The employer reported the injury to Mulvaney, who informed the claimant that he did not have workers’ compensation insurance. The claimant filed a claim and the City and Dierker both filed Answers, denying they were an employer while Mulvaney did not file an Answer. After a hearing, the ALJ entered an Award finding Mulvaney liable for the claimant’s injury and the City secondarily liable, while Dierker was not found liable. The City appealed.

HOLDING: The City argued that the Commission’s finding that the City was a statutory employer of claimant was not supported because the evidence established that the claimant did not perform work for the City as an operation of the usual business which the City carries on and the claimant was an independent contractor. The Court noted that the City purported to utilize the three step analytical formula set forth in Nichols v. Belleview that requires an appellant challenging an Award to 1) identify a factual proposition necessary to sustain the Commission’s result 2) marshal all evidence in the record supporting the factual proposition and 3) demonstrate why the evidence from the second step lacks sufficient probative force on the issues. The Court pointed out that the City’s arguments failed to meet the second criterion as evidence in the records supporting the proposition was cited inconsistently. Therefore, the Award of the Commission was affirmed.

Claimant Able to Move Forward with Appeal as Application for Review Complied with Statute Despite Cover Sheet Not Being Detailed

Miller v. Henniges Automotive Sealing Systems North America, Inc., Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109432 (Mo. App. 2021)

FACTS: The claimant filed two claims one for a 2015 date of injury and the second for a 2016 date of injury. The ALJ found the 2015 injury was not compensable but awarded PPD benefits against the employer for the 2016 injury. The Fund was not liable for benefits on either claim. The claimant filed an Application for Review (AFR) and appealed to the Commission arguing that the ALJ misapplied the restrictions placed on her by Dr. Cohen. The employer filed an Answer in response and the Fund asked the Commission to dismiss as the claimant’s pleading did not satisfy the requirements laid out in 8 CSR 20-3.030. The Commission issued an Order granting the Fund’s Motion to Dismiss finding the claimant’s AFR failed to satisfy the minimum requirements. The claimant appealed.

HOLDING: The claimant argued that the Commission acted without or in excess of its power in granting the Fund’s Motion to Dismiss because the AFR sufficiently specified the reasons the claimant believed the findings and conclusion of the ALJ were not properly supported. The Court agreed noting the Commission seemingly based its dismissal on the cover sheet of the claimant’s AFR while the AFR itself clearly specifies why the decision of the ALJ was not supported and therefore the pleading complied with 8 CSR 20-3.030. Therefore, the Commission erred in granting the Fund’s Motion to Dismiss. The decision of the Commission was reversed.