Simon Anderson Law P.C.
720 Olive Street, Suite 1720, St.
Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE
LAW UPDATE
July 2025 – September 2025
Claimant’s
Death in One Car Accident Compensable as No Evidence Accident Caused
by Texting/Use of Phone
Brazel
vs. RTS Waste Services,
Injury No. 22-065738
FACTS:
The claimant was driving a waste collection truck for the employer,
and the vehicle ran off the side of the roadway and the claimant
overcorrected. The truck came to rest on its side and the claimant
was ejected from the vehicle and died at the scene. At the scene, the
surviving passenger, Mr. Ballanger, told the trooper that the
claimant veered off the side of the road and overcorrected.
Mr.
Ballanger was deposed at which time he testified that he was texting
when the truck went off the road and only then did he look over at
the claimant and saw his left hand on the steering wheel and his
right hand on the phone. He did testify that the claimant was texting
as he saw his thumb moving. He did not know if the claimant was on
his cellphone immediately before the truck went into the grass and
did not see the screen of the cell phone.
The
employer denied the case, alleging that the claimant was texting on
the phone at the time of the accident and therefore the risk source
causing the injuries was texting while driving which led to the
accident. The employer also appeared to argue that the claimant was
equally exposed to this hazard and risk in his non-employment life.
HOLDING:
The judge
noted that the important question in this case was who had the burden
to prove the claimant was texting at the time of the accident and he
noted that it was actually the employer as asserting any claim or
defense based on a factual proposition the party asserting such claim
or defense must establish that the proposition is more likely true
than not. The judge noted that Mr. Ballanger testified that he
himself was on his phone and did not look up until the truck had left
the roadway and therefore, he was unable to testify as to what the
claimant was doing at the time the truck left the roadway. He also
noted that the first time that Mr. Ballanger stated that the claimant
was texting was 18 months after his accident at the time of his
deposition. There was testimony that the employer did not have any
phone or seatbelt policy. Therefore, the judge noted that the
claimant was not violating any employer policy, assuming he was
texting at the time of the accident. He noted that the employer’s
position requires a finding that the claimant texting, or use of the
phone was not work related and the employer produced no evidence on
that issue. He noted that even if he was using his phone there was no
evidence that his use of the phone caused the accident. The judge
concluded that the employer did not show by a preponderance of the
evidence that the claimant was texting at the time of the accident
and at the time the truck left the roadway. He found that the
claimant met her burden of proof in that the claimant’s death
was caused by an accident arising out of and in the course of the
employment. The claimant was driving the employer’s truck, on
duty, and was not engaged in any activity prohibited by the employer.
The
Commission affirmed with a supplemental decision noting that the risk
source in this case was driving the employer’s trash truck on a
two-lane rural highway and that was related to the claimant’s
employment with the employer, and the claimant was not equally
exposed to that risk source his non-employment life.
Claimant
Awarded PPD Not PTD Because Claimant’s Report of Physical
Activity Inconsistent With Surveillance
Byers
vs. New Prime Inc.,
Case No. SD38916 (Mo. App. SD 2025)
FACTS:
The claimant was a truck driver who sustained an injury operating a
trailer jack and alleged that he was permanently and totally
disabled. The Commission determined that the claimant was not PTD as
they did not find him a credible witness in light of video
surveillance which showed the claimant engaging in various activities
that he said he could no longer engage in due to ongoing pain and
depression. He also told his medical and vocational experts that he
had limitations which were inconsistent with the video surveillance.
Therefore, the Commission found his experts’ opinions regarding
the claimant’s disability unpersuasive. The claimant appealed
contending there was not sufficient competent evidence to support the
Award in that the overwhelming weight of the evidence proved that he
was PTD as a result of the work accident.
HOLDING:
The Court
noted that an Award that is contrary to the overwhelming weight of
the evidence is, in context, not supported by competent and
substantial evidence. The Court notes that substantial does not
denote quantity or even quality but simply means probative evidence.
The claimant essentially argued that his opinions were more credible
as his experts were more qualified. The Court noted that the
decisions by the Commission as to competing medical opinions lie
within its sole discretion and are not subject to Appellate review.
The
claimant also argued that the surveillance videos do not support its
finding of PPD and argued that the videos merely show him walking,
talking, standing, and shopping, but there are no videos of him
working, carrying, or lifting heavy objects or engaging in sports and
therefore there is nothing in the videos proving his ability to work.
The Court noted the argument is misguided because the claimant
appears to suggest that the employer had the burden of proving the
claimant was not entitled to PTD benefits. However, it is the
claimant who bears the burden of proof. The Court noted that the
surveillance videos rebutted the claimant’s allegations of what
he could and could not do. Therefore, the Court affirmed the
Commission’s Award of PPD benefits.
Claimant
PTD as a Result of Last Injury Alone Despite Pre-Existing Blindness
Easley
vs. Treasurer of Missouri as Custodian of Second Injury Fund, Case
No. ED113451 (Mo. App. ED 2025)
FACTS:
In 1988 the claimant sustained a gunshot wound to his face which
severed his optic nerve resulting in total blindness. He underwent
rehabilitation and began working on an assembly line. On the date of
injury, the claimant’s foot was run over by a forklift
sustaining fractures and resulted in CRPS. The claimant was then
diagnosed with left ankle instability, the doctor recommended an
ankle brace for daily use and limited the claimant to 4-hour work
days and placed him at MMI. He continued to work light duty and was
laid off in October 2021. He returned to work in February 2022 and
worked in an accommodated position until February 2023. He also was
diagnosed with anxiety and depression as a result of the work injury.
He was seen by Dr. Sky who assessed 30% disability. Dr. Lantsberger,
who the claimant treated with on behalf of the employer, placed the
claimant at MMI and assessed 20% disability. Dr. Volarich assessed
40% of the left great toe and 45% of the left lower extremity.
Mr.
Hughes opined that the claimant was PTD based on his primary injury
alongside his visual impairment. However, he noted that if Dr. Sky
was found credible, his PTD would be based on the last injury alone.
Dr. Volarich reviewed Mr. Hughes’ report and concurred that the
claimant was PTD as a result of a combination of his work injury and
his blindness. The claimant settlement his claim against the employer
for 50% of the left ankle and 25% of the body referable to psych. The
claimant proceeded to a Hearing against the Fund for PTD benefits.
The ALJ denied benefits noting that he did not establish that his
preexisting blindness was at least 50 weeks as he did not offer any
rating. The ALJ also concluded that the claimant was PTD as a result
of the last injury alone. The claimant appealed and the Commission
affirmed.
HOLDING:
The Court
noted that if the last injury in and of itself renders the claimant
permanently and totally disabled then the Fund has no liability, and
the employer is responsible for the entire amount of compensation.
Therefore, until the degree of disability from the last injury is
established, Fund liability cannot be determined. The Court noted the
Commission in this case was presented with conflicting testimony and
made credibility determinations. The Commission found that based on
the claimant’s own testimony, he was permanently and totally
disabled as result of the last injury alone as he stated he has no
physical problems prior to working before the accident. Therefore,
the Court upheld the Commission’s decision that the claimant is
permanently and totally disabled as a result of the last injury alone
and therefore, the Fund was not liable for PTD benefits.
Claim
Denied as No Contemporaneous Medical Evidence Despite Multiple
Treatment Records After Date of Injury Available With No Mention of
Work Injury
Volger
vs. Mick Mehler & Sons, Inc., Injury
No. 23-062420
FACTS:
A Hardship
Hearing was held wherein the claimant alleged an injury to his low
back. Dr. Lee testified on behalf of the claimant and believed that
the claimant’s condition was related back to the work accident.
Dr. Bernardi did not believe that the claimant’s condition was
related back to the work accident. The ALJ believed that the
claimant’s condition was work related and that the employer was
responsible for additional treatment. The employer appealed.
HOLDING:
The
Commission reversed the Award and decision of the ALJ. The Commission
found there was no credible or persuasive evidence of contemporaneous
medical documentation of a work injury on August 18, 2023. The first
reference was September 25, 2023, over a month after the alleged work
accident. However, this was not the earliest record. The Commission
found that a work-related injury was inconsistent with medical
records relating to his treatment with a chiropractor, Mercy Urgent
Care, Mercy Hospital, and Lincoln County Ambulance along with Mercy
Hospital St. Louis between August 21, 2023 and August 30, 2023. The
Commission noted that when the claimant was seen on August 29, 2023
the history noted was no new injury, trauma, or fall. Also, when he
was seen at the emergency room on August 29, 2023, he reported
chronic low back pain with onset of subjective weakness and sensation
in the right lower extremity yesterday. The Commission further noted
that the claimant’s deposition and Hearing testimony included
inconsistent accounts regarding his alleged work accident.
The
Commission found Dr. Bernardi credible and noted that he stated that
the 10-day delay between the employee’s alleged work injury and
when he reported leg complaints to urgent care on August 29, 2023 did
not support a casual link between the two. The doctor further noted
that the protrusion was not acute and that the L5-S1 disc herniation
was asymptomatic as a left sided disc herniation would not cause
right sided back and leg complaints. Therefore, the Commission
concluded that the claimant did not meet his burden of production and
persuasion regarding medical causation and therefore, compensation
was denied.
Claimant
Not Entitled to Past/Future Medical as New IME Not Additional
Significant
Evidence
to Modify Temporary Award
Gilbert vs. City of
Grandview, Missouri,
Injury No. 16-057420
FACTS:
The claimant
worked as a police officer since 2002. He injured his right knee
during a foot chase on July 31, 2016. The claimant had previous
compensable work-related injuries to his right knee in 2012 and 2013.
The claimant treated with Dr. Strong for the 2016 injury as well as
the 2012 and 2013 injuries. He underwent an arthroscopy in 2012 and
received a settlement for 15.5% of the right knee. While treating for
the 2013 injury, Dr. Strong advised him he would likely need a total
knee replacement within 10 years and the claimant settled the 2013
injury for 10% of the right knee. In 2013, Dr. Strong performed an
arthroscopy, placed the claimant at MMI, and assessed 4% disability.
She also believed that the claimant may need further medical care in
the future for his underlying degenerative changes in his knee which
were not the result of the meniscus tear for which he was diagnosed
with in 2016. The claimant returned to the doctor in 2018 and she did
not believe that the claimant’s continuing complaints were the
result of the 2016 date of injury. The claimant’s attorney
obtained a report of Dr. Stuckmeyer who opined that the claimant
would need a knee replacement, and it was due to all three of the
work injuries, essentially an occupational disease.
The
claimant moved forward with a Hardship Hearing and the judge believed
that Dr. Strong’s opinion was more credible and denied
additional treatment as a result of the 2016 work injury. The
claimant then went and treated on his own and underwent a right total
knee arthroplasty. The claimant obtained an IME report from Dr.
Rosenthal who did believe that the claimant’s knee injury and
condition flowed from the 2016 accident. The claimant went to a final
Hearing and the ALJ found that Dr. Rosenthal’s report was
“additional significant evidence” and sufficient to
warrant modifying the Temporary Award and believed that Dr.
Rosenthal’s opinions were more credible than those of Dr.
Strong. The ALJ concluded that the employer must reimburse the
claimant for medical expenses, out of pocket expenses, and future
medical treatment along with 30% disability as a result of the 2016
injury. The employer appealed.
HOLDING:
The employer alleged that the report of Dr. Rosenthal did not
constitute additional significant evidence to modify the Temporary
Award. The Commission agreed noting that it was not additional
significant evidence to support modification of the Temporary Award
as the claimant simply switched IME reports. The Commission did not
find the opinion of Dr. Rosenthal to be persuasive or credible.
The
employer also argued there was not sufficient, competent, and
substantial evidence to support an Award of past medical expenses
when treatment was denied and also argued that there was not
sufficient competent and substantial evidence to support the Award of
future medical treatment and the Commission agreed. The Commission
also modified the Award of PPD to 17.5% of the right knee.
Prior
Low Back Injury Aggravated and Accelerated Work Injury So Fund Liable
for
PTD
Benefits
Anderson
vs. Caravan Trailer, LLC & Treasurer of Missouri as Custodian of
Second Injury Fund, Injury
No. 19-058675
FACTS:
The claimant sustained an injury to his low back on February 12, 2019
and at a Hearing the ALJ found the claimant had 30% disability
referable to the work accident and that the claimant was permanently
and totally disabled as a result of the work injury as well as a
preexisting low back injury from 2 prior back surgeries. The ALJ
found that the evidence clearly showed that the claimant’s
preexisting low back impairments significantly aggravated and
accelerated the claimant’s disability as a result of the 2019
accident at work as he credited the testimony of Dr. Aks who
testified that the claimant’s preexisting scar tissue
compounded the claimant’s 2019 work injury. Therefore, the Fund
was responsible for benefits. The Fund appealed.
HOLDING:
The Fund argued that there was insufficient evidence that the
claimant’s preexisting disability directly and significantly
aggravated and accelerated the primary injury as Dr. Aks testified
that the 2016 low back injury did not aggravate the 2019 work injury.
There was no dispute that the claimant was perm total and the
Commission declined to disturb the ALJ’s findings. The
Commission further noted that Dr. Stuckmeyer’s report, which
was made part of the record as an exhibit also stated that if the
claimant was unemployable, it was due to his work injury and his
preexisting condition which constitutes competent and substantial
evidence supporting the ALJ’s Award.
Dr.
Aks testified that the claimant has epidural fibrosis as a result of
his prior surgeries and that made him more susceptible to further
degeneration of his back as well as being more susceptible to
reinjury. He noted that the claimant’s primary injury was the
prevailing cause of a large, left sided herniated disc, a new
pathology that required additional surgery. After repeated
questioning, Dr. Aks did testify on cross examination that the
preexisting condition did not aggravate the work injury because it
did not really cause it and what caused it was the physical maneuver
that he did, herniating the disc. The Fund argued that that testimony
supports the argument that the preexisting disability did not
aggravate or accelerate the primary injury. However, the Commission
disagreed noting that Dr. Aks’ confusion about how to interpret
“aggravate” in a medical context does not undermine his
opinion that the claimant’s preexisting epidural fibrosis
directly and significantly aggravated the disability resulting from
the claimant’s large left sided herniated disc, a new pathology
caused by his primary injury. Therefore, the Fund was responsible for
benefits.
