Simon Anderson Law P.C.

720 Olive Street, Suite 1720, St. Louis, MO 63101

314-621-2828

MISSOURI WORKERS' COMPENSATION CASE LAW UPDATE

July 2022 - September 2022

New Claim for Wrist Denied Following Settlement of Earlier Claim for Repetitive Injury to

Same Upper Extremity

Lamy v. Stahl Specialty Co. , Case No. WD85163 (Mo. App. 2022)

FACTS : The claimant filed a claim for an injury on August 26, 2016, to his left upper extremity. The employer referred the claimant to Dr. McNamara for left shoulder pain and numbness and tingling in his left hand. Dr. McNamara performed left shoulder surgery on October 11, 2016. In his notes from the February 13, 2017, appointment, Dr. McNamara indicated the claimant had left carpal tunnel syndrome that might require further treatment. The claimant's attorney had the claimant examined by Dr. Stuckmeyer on November 9, 2017, who opined that the claimant had left carpal tunnel syndrome related to his work and might require further surgery. Thereafter, the claimant settled his August 2016 claim for 12.5% of the left shoulder. He initialed the Stipulation that he had full awareness of the consequence of the settlement and the ALJ approved the settlement on May 2, 2018.

The claimant filed a second claim on June 26, 2018, alleging injury to the left wrist on February 13, 2017, the date on which Dr. McNamara advised that the claimant still suffered from left carpal tunnel and required treatment. In his report dated August 19, 2019, he opined that the claimant's left-hand complaints were related to his repetitive work that had been the subject of the August 2016 claim.

HOLDING : The ALJ denied claimant's February 2017 claim noting that the prevailing factor for claimant's left carpal tunnel was the same prevailing factor that gave rise to the claimant's 2016 claim which the claimant voluntarily settled, despite knowing that both physicians had diagnosed him with left carpal tunnel that might require surgery. The Commission affirmed the Judge's decision and the claimant appealed.

The Court affirmed the decision of the Commission. The Court stated that the Commission did not commit legal error, when it found based on uncontested facts, that pursuant to Section 287.390, that the compromise settlement exhausted the Commission's jurisdiction to reopen the August 2016 claim to consider the February 2017 claim. There was no showing of fraud or undue influence. The claimant knew he had a repetitive injury to his left wrist, a portion of his left upper extremity, when he entered the settlement for the August 2016 claim for repetitive injury to the left upper extremity.

Claimant Must Present Sufficient Evidence to Establish that a Work-Related Exposure

is The Prevailing Factor Causing Occupational Disease

Hanes v. Department of Corrections, Missouri Office of Administration, CARO, and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-124885

FACTS : At Hearing, the claimant testified that his for job from 1991 through 1998, he was in charge of taking inmates for medical procedures and that x-rays were involved 2-3 times per week from 1993 to 1998 but provided no additional detail. The claimant testified he was not provided protective gear in contrast to the testimony of Dr. Kibby who testified that the claimant told him he was protected. The Judge found the claimant did not establish the nature of the exposure and duration of the exposure, the frequency of the exposure, and the radiation levels which he may have been subjected. Dr. Kibby did not connect the claimant's condition back to his job duties.

The Judge found the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the claimant had no other known cause of potential conditions which would lead to thyroid cancer did not establish that his job was the prevailing factor in causing his cancer.

HOLDING: The Judge found that pursuant to Section 287.067, the claimant failed to meet his burden of proof that he was exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was the prevailing factor in causing any illness. On appeal, the Commission affirmed the Award of the ALJ.

Claimant's Bilateral Carpal Tunnel Syndrome Resulted from Longstanding Occupational Exposure from First Employer Despite Limited Exposure with Concurrent Second Employer

Porter v. St. Louis Post-Dispatch LLC/Lee Enterprise and CCL Label, Inc./CCL Industries Corp., Injury No. 17-013765

FACTS : On March 6, 2017, the claimant was employed by both the Post-Dispatch and CCL. The claimant began working for the Post-Dispatch in 2001. She worked at a machine that placed inserts in the newspapers. When the claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at LLC in 2012, she reduced her hours at the Post-Dispatch. The claimant worked over 40 hours a week at CCL. She would work 10 hours or overtime every 2 weeks. At CCL, the claimant inspected labels for medicine bottles and would only pick up a few labels at a time. She was also diagnosed with diabetes in 2016.

The claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focused on the fact that the claimant was working part-time when she developed carpal tunnel symptoms. However, Dr. Schlafly testified that the claimant's cumulated exposures for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced, because she continued to be exposed to the risk unabated.

The ALJ concluded that the claimant's job duties at the Post-Dispatch were the prevailing factor in the development of bilateral carpal tunnel syndrome and therefore they were responsible for treatment and CCL did not have any liability.

HOLDING : The Temporary Award of the ALJ was appealed to the Commission. The Commission noted that Commission Rule 8CSR02-3.010 specifies when an Application to Review a temporary or partial Award may be filed. The rule allows a party who feels aggrieved by the issuance of a temporary or partial Award by an ALJ to petition the Commission to review the evidence upon the grounds that the applicant is not liable for payment of any compensation.

With respect to the Judge's finding that "claimant's diabetes was under control" was without support in the medical evidence, the Commission noted that Dr. Schlafly's deposition testimony indicated that the employee's diabetes was "well controlled as of the blood tests of February 10, 2017."

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence.

Evidence Must Persuasively Establish that Work Related Injuries Combine with Pre- existing Conditions to Render Claimant PTD.

March v. Treasurer of the State of Missouri/Custodian of The Second Injury Fund , Case No. SC99381 (Mo. App. 2022)

FACTS : As a result of the primary 2015 occupational disease claim, the claimant underwent a repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. The claimant missed work due to these injuries but returned to work without restrictions. Before the claimant suffered the primary injury, he endured other health issues, including: morbid obesity, thyroid issues, hypertension, TIA, atrial fibrillation, asthma, a previous left rotator cuff tear, and a left leg laceration. The prior left leg laceration had created blood flow issues. The preexisting medical condition to the bilateral lower extremity included symptoms of edema and pain radiating down both legs into the ankles, secondary to morbid obesity and venous varicosities associated with obesity.

At the hearing, the claimant explained that after treating for his upper extremities, he was able to return to work. However, he stated that his leg conditions worsened due to standing at work. Both of the testifying experts, Dr. Hopkins and Dr. Waldschmidt agreed that standing for long hours during the course of employment aggravated and necessitated the claimant's need for ablation and aggravated his preexisting venous condition in his lower extremities.

The claimant also offered at the Hearing the vocational report of Ms. Skahan who opined that the claimant was vocationally disabled due to the work injuries to his upper extremities in April 2015 and the progressive disabilities from his venous condition and aggravation from his work activities to the bilateral lower extremities around the same time frame of April 2015.

The ALJ determined that the greater weight of the testimony led her to conclude that the claimant had not met his burden of proof to establish Fund liability because the claimant's lower extremity conditions which preexisted the work injury, were actively being treated and significantly deteriorated after the work-related accident. The Judge further found that there was no aggravation or acceleration of the work-related accident to combine to make the claimant permanently and totally disabled.

The Commission agreed that the Fund was not liable for PTD benefits because the claimant failed to meet his burden of persuasion. They were not persuaded that the combination of the claimant's preexisting injuries and his primary injury resulted in the claimant's PTD.

HOLDING : The claimant appealed, and the Court affirmed the Commission's decision. The Court held the Commission appropriately found it was not persuaded that the combination of his preexisting disability and his primary injuries entitled him to PTD benefits because it was "equally likely" that his preexisting disabilities alone rendered him permanently and totally disabled.

No Fund Liability for PTD When Claimant Failed to Establish a New, Second Work

Injury Combined with First Work Injury Alone Rendering Claimant PTD

Danner v. Missouri Department of Public Safety (settled), Missouri Office of Administration Caro (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS : The claimant and employer settled the claims for both the work injury of 6/4/2014 and the alleged work injury of 7/17/14 both involving the low back. Dr. Hopkins stated that based on the short period of time between the two injuries he believed that her low back injury on July 17, 2014, was a continuation of her first injury, just over one month prior. This statement was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the 7/17/2014 incident was an aggravation or continuation of the 6/4/14 injury.

Therefore, at Hearing, the Judge stated that based upon the overwhelming majority of the expert's medical evidence, the claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/14. Therefore, the Judge found that the 6/4/14 work injury in isolation was the prevailing factor in causing the claimant's medical condition and disability.

The ALJ concluded that there was no work injury after 6/4/2014 that combined with a preexisting disability to result in the claimant's permanent total disability. Therefore, the ALJ found that the claimant had failed to meet her burden that the Fund was liable for her PTD benefits.

HOLDING : On appeal, the Commission affirmed the decision of the ALJ. They noted that the Judge awarded compensation for the June 4, 2014 work injury. They also agreed with the Judge's finding that the testimony of the employee and her experts, although unimpeached and found credible, failed to persuade the ALJ that the employee's July 17, 2014 work event constituted a new and distinct injury separate from her prior work-related lifting injury of June 4, 2014. The Judge did not violate Section 287.800.2 by failing to weigh the evidence impartially or unfairly giving the benefit of the doubt to the Fund when it was found that the evidence the employee produced was insufficient to establish the elements of her claim.

The Commission relied on the recently decided case of March, (as discussed above) that stated that in order to establish a claim, the employee must not only meet her burden of production, but also the burden of persuasion. It noted that in March, the Court held that the fact that the Fund did not offer contradicting evidence and did not cross examine the employee, did not establish a presumptively valid claim and denied a post 2014 Fund claim for PTD.

Fund Can Receive Reimbursement from Uninsured Employer Absent at Hearing When

Appeal is Not Timely Filed

Treasurer of the State of Missouri, as Custodian of The Second Injury Fund v. Van Horn , Case No. SD37311 (Mo. App. 2022)

FACTS : In January 2011, the claimant filed an amended Claim for Compensation alleging that he was injured in an "accident" on "11/18/2010" while "in the scope and course of employment" with the employer. At the time of the alleged injury, the employer did not have workers' compensation insurance. Notice was sent to the employer's last known address via certified mail that a final hearing was scheduled. The employer did not appear at the hearing.

The ALJ entered a final Award and found the claimant was injured while in the employment of the employer and that the employer was liable for all medical care and expenses resulting from the injury, totaling $34,345.00. Because the employer failed to maintain workers' compensation insurance as required, the ALJ determined that the Fund was responsible for those expenses. The Judge also stated that the Fund "shall be entitled to reimbursement against the employer for all medical expenses incurred, and as is allowed by law".

Thereafter, the Fund filed an "Application for Judgement on Certified Award from the Division" in Circuit Court, seeking reimbursement of the $34,345.00 from the employer pursuant to Section 287.220.5 and 287.500. Ten days later, counsel for the employer entered his appearance. On June 26, 2020, the reimbursement action was tried in the Circuit Court and a judgement was entered that same day in favor of the Fund against the employer's business. On June 29, 2020, the Fund filed a Motion to Amend the Judgement to name the employer individually rather than his business because the Final Award found the employer liable as an individual. On August 30, 2020, the Court granted the Fund's Motion and entered the Amended Judgement for the Fund and against the employer as an individual.

On August 10, 2021, nearly a year later, the employer filed his Rule 74.06 (b) Motion to Set Aside the Amended Judgement. After taking the matter under advisement, the Circuit Court entered a Judgement denying the Employer's Rule 74.06 (b) Motion. The employer appealed.

HOLDING : The employer asked the Court to set aside the Amended Judgement against him to reimburse the Fund in the amount of $34,345.00. The Court affirmed the Judgement of the Circuit Court. It found that the employer's argument that the Division lacked subject matter jurisdiction or statutory authority was misdirected. The employer's Rule 74.06 (b) Motion sought to set aside the Circuit Court's Amended Judgement should have presented the argument regarding subject matter jurisdiction to the Circuit Court in the reimbursement action. The employer also argued that the Division denied the employer due process when it entered liability against him when the Division proceeded with the hearing without the Fund filing a pleading which notified the employer that the Fund held and pursued such a claim against the employer. However, the Court stated that after the initial judgement granting reimbursement was filed, notice of the Fund's Motion to Amend the Judgement was sent to the employer's counsel and again, the employer failed to raise a constitutional challenge at that time. After the Amended Judgement was entered, the employer did not appeal. Instead, the employer waited nearly a year to raise the due process challenge for the first time in his Rule 74.06 (b) Motion to Set Aside the Amended Judgement.

Employer Cannot Claim Sovereign Immunity as School District Under Work Comp Law

Poke v. Independence School District , Case No. SC99384 (Mo. App. 2022)

FACTS : The claimant was employed as a custodian by the school district. He sustained an injury at work. He independently sought medical treatment and was diagnosed with a hernia. He initiated a workers' compensation claim against his employer, the school district, who directed him to an authorized treatment provider who diagnosed inguinal tenderness. As requested, the claimant provided the authorized treatment provider with a urine sample. Thereafter, the employer discharged him because his urine sample tested positive for marijuana, violating the school district's drug policy.

The claimant filed suit under Section 287.780 alleging that the employer's stated basis for terminating his employment was pretextual and that he was actually discharged in retaliation for exercising his workers' compensation rights. Subsequently, the school district filed a Motion for Summary Judgement, arguing it was entitled to sovereign immunity from the claimant's workers' compensation retaliation claim. The Circuit Court sustained the school district's motion.

HOLDING : The claimant argued that because the legislature included the state and political subdivisions, such as school district, as employers for the purposes of the Workers' Compensation Law, workers' compensation retaliation claims are authorized against the school district. The Appellate Court stated that the issue before it was not whether the claimant had a valid claim for retaliation. Instead, they said the only issue is whether such General Assembly expressly waived whatever immunity the school district might have had, the judgement of the Circuit Court was reversed and the case was remanded for further proceedings.

In explaining its decision, the Court relied on the decision in Bachtel v. Miller County Nursing Home Dist., 110 SW 3d 799 (Mo. Banc 2003). The legislature (1) created a private right of action that can be brought against any employer who retaliates against an employee for exercising his or her workers' compensation rights per Section 287.780; and (2) specifically included governmental entities in the workers' compensation law's definition of "Employer" under Section 287.030. The Court concluded that consequently, considered together, Sections 287.780 and 287.030 reflect legislative intent to waive the school district's sovereign immunity for the claimant's workers' compensation retaliation claim.

Must Consider Number of Hours Needed to Qualify as Full Time Employee for Specific Employer When Calculating AWW

Kurbursky v. Independent In-Home Services LLC. and Treasurer of The State of Missouri - Custodian of Second Injury Fund, Case Nos. SD37103 & SD37104 Consolidated (Mo. App. 2022)

FACTS : The claimant was employed by the employer as a home healthcare worker. On August 15, 2012, the claimant was visiting a home of one of her patients when she hit her head on a canoe that was on top of a car in the patient's driveway, causing her to fall on her back. At the hearing, the ALJ awarded the claimant PPD benefits and additional TTD benefits but determined the claimant had not met her burden of proof to obtain benefits for past or future medical care, Fund liability or PTD. The ALJ found Dr. Poetz's testimony that the claimant was unemployable in the open labor market not credible and his disability ratings were substantially inflated, and that Mr. England's vocational opinion was less than credible and was not persuasive because his opinion was based on substantial speculation regarding the effect of sleep deprivation and the impact daytime drowsiness would have on the claimant's employment prospects.

The Commission affirmed the ALJ's findings that the primary injury was compensable and on the issues of past and future medical care, nature and extent of PPD and the MMI date. The Commission modified the Award regarding the compensation rate, TTD benefits, and SIF liability. The Commission found Dr. Poetz's PPD ratings and his opinions on the relationship between the claimant's prior and preexisting injuries were persuasive, but that Dr. Poetz's opinion on PTD was not persuasive. However, the Commission applied a 20% multiplicity factor to the ALJ's PPD findings so that the claimant was entitled to enhanced PPD benefits from the Fund.

HOLDING : The Claimant appealed the Commission's decision denying PTD benefits and challenged the Commission's application of the law for calculating the average weekly wage for PPD benefits.

The Court noted that challenges to an Award, where the claimant failed to meet his or her burden of proof, are rarely successful on appeal. They noted that in this case, even assuming that the claimant produced competent and substantial evidence, the claimant still bore the burden of convincing the Commission to view the evidence in her favor. She failed to meet this burden. The Commission's denial of PTD benefits, past medical care, and future medical care was affirmed.

Regarding the issue of the average weekly wage, the Court, however, agreed that the Commission incorrectly interpreted Section 287.250.3 by adding words to the statute and as a result, the Commission did not calculate the claimant's average weekly wage based on the number of hours per week utilized by the employer to classify an employee as a full time or regular employee. Because the Commission failed to make actual findings on the average weekly wage of full time or regular employee engaged by this employer to perform work of the same or similar nature, and the number of hours required by this employer to classify an employee as a full time or regular employee, the Court reversed and remanded the case on this issue back to the Commission.

The Court affirmed the Commission's final Award and all respects except for the calculation of PPD benefits. They reversed and remanded the case to the Commission to make actual findings on the correct average weekly wage to correctly calculate its Award.