MISSOURI WORKERS’COMPENSATION
CASE LAW UPDATE
October 2012 - December 2012
Top
When
Employer Files a Late Answer, the Alleged Rate in the Claim is Deemed Admitted
T.H.
v. Sonic Drive In of High Ridge, Case No. ED98507 (Mo. App. 2012)
FACTS:
The claimant alleged psychiatric injuries she sustained as a result of
being sexually assaulted at work by a co-worker. The LJ found the claimant
sustained 45% PPD of the body referable to PTSD and depressive disorder caused
by the work injury. The LJ used a maximum rate of $376.55, as that is what the
claimant’s attorney listed on the Claim for Compensation, and since the
employer did not timely file an Answer, everything was deemed admitted.
The
Commission affirmed the Award of PPD benefits to the claimant. However, it
modified the LJ’s Award with respect to the rate. The Commission noted that the
allegation that she had an average weekly wage of max rate was a legal
conclusion not a factual allegation, and therefore, the employer did not admit
that the claimant had a max rate by filing an untimely Answer. The Commission
also found that since the claimant failed to meet her burden of proving her
average weekly wage, the applicable rate of compensation for the Award was the
minimum rate of $40.00 per week.
HOLDING:
The claimant appealed the LJ’s finding that the applicable rate of
compensation for the Award of PPD benefits was $40.00 per week. The Court noted
that an employer’s untimely answer results in the admission of factual
allegations in a claimant’s Claim for Compensation. However, allegations in a
Claim for Compensation which are legal conclusions are not deemed admitted by
the employer’s untimely answer. The Court concluded that wage rate is a
question of fact and since the employer failed to file a timely answer, the max
wage rate as alleged in the Claim was a factual allegation deemed admitted by
the employer. Therefore, the claimant was entitled an Award of PPD benefits at
the maximum rate of compensation.
Top
Injury
Compensable when Claimant Fell Down Stairs Carrying Helmet and Wearing Work
Boots
Pope
v. Gateway to the West Harley Davidson, Case No. ED98108 (Mo. App. 2012)
FACTS:
The claimant sustained a right ankle fracture and dislocation when he fell down
the stairs. The claimant’s job duties included inspecting motorcycles, washing
and test driving motorcycles and performing routine motorcycle maintenance. At
the end of the day, he was asked to drive motorcycles
from the sales lot into showrooms for overnight storage. After moving the last
motorcycle, he went to check with his supervisor in the service department,
which was located down a staircase, to insure that everything was completed
before he clocked out. He was walking down the stairs wearing his work boots
and carrying his motorcycle helmet when he lost his footing and fell. An LJ
found that the claimant did not meet his burden of showing his injury arose out
of and in the course of his employment. The Commission reversed the decision of
the LJ. The employer/insurer argued that the claimant was not injured in the
course and scope of his employment, because he was equally exposed to the risk
that caused his injury in his normal, non-employment life.
HOLDING:
The Court agreed with the Commission finding that the claim was compensable.
The Court had to consider whether the claimant was injured because he
was at work as opposed to being injured merely while he was at work. The
Court found that the claimant’s injury had a causal connection to his work
activity, because he had just finished moving a motorcycle and he was going to
check with his supervisor, which required him to descend the staircase, at
which time he was wearing his work boots and carrying his work-required
motorcycle helmet. He had his helmet
with him because of the work activity he had performed just prior to descending
the stairs.
The
employer/insurer argued that the claimant was a motorcycle enthusiast who wore
the same boots and helmet when operating a motorcycle outside of his
employment, and therefore, he was equally exposed to the risk of injury in his
normal, non-employment life. The Court was not persuaded. The Court did note a
similarity between the claimant’s work activities and his non-employment life, however, the record did not contain evidence to
support a finding that the claimant was equally exposed to the risk of walking
down stairs while carrying a work-required helmet outside of work. The Court
also noted there was no evidence that the claimant’s boots contributed to or
caused him to fall, and although he testified he often wore his boots outside
of work, the record lacked any evidence that the claimant fell because of his
boots. Therefore, the Court concluded that the claimant’s injury arose out of
and in the course of his employment, and he was entitled to benefits.
Claimant
Must Prove Work Injury was Prevailing Factor in Causing Medical Condition
and Disability
Ronald
Armstrong v. Tetra Pak and Treasurer of the State of Missouri as Custodian of
the Second Injury Fund, Case No. SD31971 (Mo. App. 2012)
FACTS:
The claimant was at work feeding cardboard into the processing machine at
which time he was not suffering any pain in his shoulder or any part of his
right upper extremity. He then began working on a rush order which required him
to stack cardboard higher than usual, which was above the head and shoulder. He
reached for the cardboard and felt a sharp deep pain in his right shoulder. The
following day he reported the incident to his supervisor. He was seen by Dr.
Cooper and Dr. Lehman, who both believed that the claimant’s shoulder condition
was pre-existing and he did not sustain an acute injury to his right shoulder.
Therefore, the lifting incident was not the prevailing factor in causing his
right shoulder problems. Dr. Woiteshek, the claimant’s
physician, did note that the work incident was the prevailing factor in causing
the claimant’s shoulder condition. However, Dr. Cooper and Dr. Lehman were
found to be more credible. The LJ found that the claimant failed to satisfy his
burden of proving he sustained a compensable accident and that the alleged
accident was the prevailing factor in causing his right shoulder problems. The
Commission affirmed the LJ’s decision, however, opined that the claimant did
prove that he sustained an injury to his right shoulder in an accident at work.
However, the more credible evidence showed that the claimant’s shoulder
complaints were predominantly degenerative in nature and not primarily due to
his work accident. Therefore, since the claimant did not prove that his work
injury was the prevailing factor in causing both his medical
condition and any disability, they affirmed the LJ’s decision to deny
benefits.
HOLDING:
The claimant argued that the Commission correctly found that he sustained a
work injury, but erred in finding that his shoulder complaints were
predominantly degenerative in nature and not primarily due to the work injury.
The claimant argued that this finding was erroneous because once an accident
has been sustained, the employer is responsible for
all injuries and disabilities that flow from this accident. The Court found no
merit in this argument. The Court noted that based on Statute, a claimant is
not entitled to compensation unless he proves that he suffered an accident or
work related injury, and the accident was the prevailing factor in causing both
the resulting medical condition and disability. The Court found the Commission
correctly used the legal standard in determining that the claimant did not
sustain a compensable injury because the accident was not the prevailing factor
in causing both his resulting medical condition and disability.
Hearing
Loss Found Not Compensable
Burt
Kersey v. Autry Morlan, Inc., Case No.: SD31883
(Mo. App. 2013)
FACTS:
The claimant was an auto mechanic and was investigating the cause of an
alternator noise in a customer’s engine. To do so, he applied a stethoscope to
the alternator and something popped causing a very loud noise, at which time
the claimant noted he was deafened and immediately reported this to his
employer. The claimant was prescribed hearing aids and continued to follow-up
with doctors until 2010, which was paid for by the employer/insurer. The LJ
found the claimant failed to meet his burden of proof that his work accident
was the prevailing factor in causing his hearing loss and tinnitus. The
Commission affirmed the opinion of the LJ.
HOLDING:
The Court noted that compensability of job related hearing loss is governed by
Statute and Regulation. The Court noted that if traumatic hearing loss does not
meet the minimum prescribed threshold pursuant to Statute and Regulation then
the work accident cannot be the prevailing factor in causing either a
compensable injury or any level of compensable hearing loss. The Court noted
that Dr. Mikulec, the employer’s expert, was the only
expert who evaluated the claimant’s hearing loss pursuant to the requirements
of the Statute and Regulation. The doctor determined that the claimant’s
hearing loss did not meet the minimum threshold for compensability and it was
found that the doctor’s opinion was credible.
With
respect to tinnitus, the Court noted that Dr. Guidos,
the claimant’s expert simply provided a rating of 15% of the body and did not
provide a causation opinion. The Court noted that Dr. Mikulec
opined that the cause of the claimant’s tinnitus was unknown and, therefore,
the claimant failed to meet his burden of proof that there was a direct causal
link between his tinnitus and his job. Therefore, the Commission’s Award was
affirmed.
After
Award, Employer Only Has to Provide Medications Necessary to Cure and Relieve Effects
of Work Injury
Lynda
Noel v. ABB Combustion Engineering and National Union Fire Insurance Co.,
Case No. ED98446 (Mo. App. 2012)
FACTS:
The claimant sustained a work-related back injury in 1997 and was awarded
compensation and future treatment benefits. The employer was providing
treatment with Dr. Granberg for pain management, and
Dr. Robinson for depression and psychiatric disorders. At some point in 2007
the employer attempted to change the claimant’s treating physicians, and she
objected. Therefore, at that time the employer continued providing treatment
through Drs. Robinson and Granberg. However, in April
2011, the employer sent the claimant to Dr. Jarvis, who concluded that both
doctors had lost their perspective ways, and he recommended several changes to
the claimant’s medication. Therefore, the employer denied many of the claimant’s
prescription medications. The claimant filed a motion with the Commission
asking it to prevent such a change in medications arguing it would endanger her
life, health or recovery. (Editor’s note: The employer is only required to
provide treatment, ie. medications,
that are necessary to cure and relieve the effects of her work injury.
If there is reasonable ground to believe that the life, health or recovery of
claimant is endangered the Commission may order a change in that treatment.)
The
Commission ordered a hearing and after reviewing the transcript, concluded the
claimant failed to meet her burden of showing that all of the medications she
was taking were necessary to cure and relieve the effects of her work injury.
Therefore, the Commission did not even address the claimant’s argument that a
change in those medications would endanger her life, health or recovery. The
claimant appealed the decision arguing the Commission erred in finding that she
failed to show that her medications were related to her work injury.
HOLDING:
The Court noted that the Commission looked to the doctors’ opinions and the
claimant’s testimony with respect to what medication she needed as a result of
her work injury. With respect to the claimant’s pain management, at the hearing
she testified that Dr. Granberg had been treating her
for the past eleven years for chronic pain which was related to her 1997
work-related injury, and the employer did not dispute this. The Court found the
claimant met her burden of proving that the need for pain management flows from
the work injury. Therefore, the Commission erred in failing to make a decision
with respect to the claimant’s argument that changing her medications would
endanger her life, health or recovery. This aspect of this case was reversed
and remanded to the Commission to make this determination.
With
respect to the claimant’s psychiatric medications, the Court noted that the
Commission believed Dr. Jarvis over Dr. Robinson, the claimant’s treating
physician, and therefore, found that the claimant failed to meet her burden of
proving that these medications were related to her work injury. Therefore,
essentially, the employer did not have to provide them.
An
Occupational Disease Triggers SIF Liability
Treasurer
of the State of Missouri - Custodian of the SIF v. Gloria Stiers,
Case No. WD75101 (Mo. App. 2012)
FACTS:
The claimant settled her occupational disease claim against the employer
for 32% of the right arm and 30% of the left arm and went to a hearing against
the SIF for PTD benefits. She alleged multiple pre-existing disabilities. The LJ
found that the claimant was permanently and totally disabled as a result of a
combination of her pre-existing disabilities and her subsequent occupational
disease. The SIF appealed arguing that the LJ did not have the authority to
hear the case because the Workers’ Compensation Statute and case law do not
allow for the adjudication of occupational disease claims through Workers’
Compensation. The Commission affirmed the Award of the LJ and noted that an
occupational disease qualifies as a compensable injury for purposes of
triggering SIF liability. The SIF appealed, arguing that an occupational
disease is not a compensable injury for the purpose of triggering SIF
liability.
HOLDING:
The Court looked directly to the plain language of the Statute that states
that a compensable injury triggers SIF liability. The part of the Statute
dealing with an occupational disease notes that an injury by occupational
disease is compensable, and therefore, an injury by occupational disease
triggers SIF liability. Therefore, the decision of the LJ was affirmed.
Claimant
Has To Prove Permanent Disability to Receive Compensation
In
Kyle Hunter v. Sachs Electric, Injury No. 08-112333, the LJ
denied the claimant’s claim for PPD benefits, concluding that while the
claimant sustained acute synovitis from striking his
knee at work, he did not materially change the structural soundness of his knee
or cause any additional chondral injury to the knee.
The claimant argued on appeal that it is inconsistent to find that his injury
caused synovitis but did not cause an acute change to
the structure of the knee. The claimant meticulously analyzed the definitions
of synovitis, membrane, and inflammation, before
arguing that it is impossible to have acute synovitis
to the knee without an acute change to the structure of the knee. The
Commission noted that the claimant focused on proving that his injury caused an
acute change to the structure of the knee, however, noted that his primary
focus should have been on proving that the incident was the prevailing factor
in causing his permanent disability. Dr. Milne, the employer’s expert, opined
that the claimant had 6% PPD of the left knee which was pre-existing. The
Commission noted the LJ thoroughly reviewed the evidence and concluded that Dr.
Milne’s opinion was more credible than Dr. Volarich’s,
the claimant’s expert. Therefore, the LJ’s decision was fully supported by
competent and substantial evidence, and therefore, was affirmed.
Employer
Not Prejudiced By Lack of Notice
In
Leotha Faulkner v. Aramark Educational Services, Inc., Injury No.
10-026257, the claimant sustained an injury to her right knee after she
fell at work, and the LJ denied the claimant’s claim for TTD and PPD because he
found that she failed to provide the employer with proper, timely notice. Also,
she failed to prove the employer was not prejudiced as a result of her failure
to provide that notice. The claimant admitted that she did not provide proper,
timely notice. However, she argued that the employer was not prejudiced by her
failure to do so. The employer argued that it was prejudiced because it was
unable to timely investigate the accident to determine causation and address
safety issues.
The
Commission found that the employer pointed out the potential for prejudice, but
did not point to actual prejudice as a result of the claimant’s untimely
notice. The Commission noted that, for instance, if another individual was
injured at the same location that the claimant was injured, and the employer
could have prevented that injury had the claimant provided proper notice, the
employer would be prejudiced. The Commission also noted that the employer
stipulated to the fact that the claimant sustained 20% PPD of the right knee
and did not claim any possible safety violation. Furthermore, if the employer
believed that causation and safety issues were in question, it should not have
stipulated to those issues at the hearing. Also the claimant did not seek
reimbursement for her past medical expenses nor future medical treatment.
Therefore, the employer was not prejudiced by its inability to timely
investigate the accident or direct and provide medical treatment.
Claimant’s
Injury Sustained in Stairwell of Building Housing Employer’s Business Not Compensable
In
Pamela Appt v. Fireman’s Fund Insurance Company, Injury No. 09-004637,
the claimant slipped and fell on stairs located inside the building which
housed the employer’s leased office space. The relevant facts in this case were
that the employer is one of multiple tenants in a large office building
containing shared entryways and stairways. The employer’s office was located on
the second floor. The claimant was on her way to work when she entered the
building, walked up the stairwell to the second floor, and slipped and fell on
top of the stairs as she was opening a door. The claimant testified that she
believed she fell inside the open door at the top of the stairs. The LJ found
that her injuries arose out of and in the course of her employment. The
employer appealed, alleging that the claimant’s injuries did not arise out of
and in the course of employment because there was no evidence that the employer
owned or controlled the stairs where the claimant fell.
The
Commission noted that the evidence was clear that the employer did not own the
building where the accident occurred, and therefore, the issue was whether the
employer exercised sufficient power and influence over the area at the top of
the stairs so as to constitute control. The Commission further noted that the
record was devoid of any evidence or testimony regarding whether the employer
controlled this area in which the claimant fell. Therefore, because the
claimant failed to prove that the employer controlled the area where the
accident occurred, she failed to meet her burden in proving that the injury
occurred in the course of the employment, and therefore, the Commission denied
her claim.
Claim
Found Not Compensable Because Claimant Found Not Credible Due to Her In Consistent Testimony
In
Jackie Porter v. RPCS, Inc., Injury No. 09-052591, the claimant’s
co-workers found her on the floor in a vestibule outside the employee bathroom
complaining that she had fallen. She sustained a hip injury requiring surgery,
and also an aggravation of some pre-existing back problems. The LJ found the
claimant did not provide credible testimony regarding the circumstances of her
fall. The Commission agreed and further noted that the testimony the claimant
provided at the hearing with respect to the moments before the event (the last
thing she remembers was washing her hands), contradicts her deposition
testimony (the last thing she remembers was locking the bathroom door). The
Commission further noted that no one saw the claimant fall.
The
Commission found that the claimant did meet her burden for proving accident, however, she did not meet her burden of proving
that her injuries arose out of and in the course of her employment. It was
noted that the claimant attempted to advance numerous theories in an attempt to
overcome the evidentiary problem, but each simply only invited the Commission
to speculate that something dangerous about the employer’s bathroom or the
vestibule outside it may have caused the claimant to fall. The
Commission concluded that they simply did not know what risk or hazard caused
the claimant to fall, and therefore, the Commission affirmed the LJ’s opinion
denying benefits.
Doctor’s
Opinion Found Not Credible Because He Did Not Distinguish Between From
the Work Injury and Claimant’s Pre-existing Disability
In
Aaron Dye v. Lafayette County, Injury No. 10-095853,
the claimant injured his left knee at work while subduing an unruly inmate. He
had a prior injury to his left knee on December 28, 2009. An LJ found that as a
result of this work injury, he sustained 22.5% PPD to the left knee. The Commission
noted that Dr. Wise, the employer’s expert, provided a rating of 5% PPD from
the work injury. Dr. Stuckmeyer, the claimant’s
expert, provided a 40% PPD rating based on a combination of the claimant’s
prior injury and the work injury. He did not attribute a specific portion to
the work injury. The Commission noted that the LJ did not even acknowledge the
dissimilarity between the two doctors’ ratings before simply splitting the
difference. The Commission noted that in light of the claimant’s two injuries,
an expert opinion attributing a specific percentage of disability to the work
injury was necessary for the LJ to arrive at a decision on this issue. Since
Dr. Stuckmeyer did not attribute a specific
percentage to the work injury, the Commission did not give his opinion any
weight and found that Dr. Wise’s rating of 5% PPD was credible and awarded the
claimant the same.
Claim
Denied Because Claimant Alleged Two Injury Dates and Multiple Versions of the Injury
In
Hiba Sadic
v. SEMCO Plastics Company, Inc., Injury No. 06-042666, the LJ found
that the claimant failed to prove an accident that caused her right shoulder
injury. The LJ noted that the Claim for Compensation alleged an accident date
of on or about 4/4/06" with no specific description of the event. It was
noted the claimant was originally from Bosnia and there were language and
translation issues. The Commission did take this into account, however, noted
that there were at least 5 different versions of how the claimant was injured
and two alleged dates of injury. She reported multiple different histories of
injury to different providers which were: removing excess plastic with a knife;
heavy lifting; pushing boxes; being hit by a robotic machine; and finally,
pulling on a lever on a machine. The LJ found that even though the claimant
testified regarding a traumatic event or unusual strain, she did not have a
specific date of injury, reporting two different dates of injury, and there
were several versions of the injury. Therefore, the claimant failed to
establish a compensable accident and the claim was denied. The Commission
affirmed the decision of the LJ.
Claimant
Can Receive PPD Benefits Even if Found To Be PTD as the Result of a Prior Injury
In
Ricky Cantrell v. L. Krupp Construction, Inc., Injury No. 07-040226,
the claimant was diagnosed with bilateral carpal tunnel syndrome in May 2007
which resulted from his job duties. Dr. Pruett treated the claimant and
provided a rating of 10% of each wrist. The claimant also had a prior claim
with an injury date of October 18, 2006, and was awarded PTD benefits as a
result of that injury. The LJ denied PPD benefits because he was diagnosed with
a carpal tunnel condition in May 2007, at which time he was already permanently
and totally disabled for conditions unrelated to that carpal tunnel syndrome.
The Commission reversed the LJ’s denial of benefits. The Commission noted that
the LJ ruled that PPD benefits are only payable if an injured worker suffers an
actual loss of or reduction in earning capacity. The Commission noted that the
Statute states PPD shall be allowed for loss by severance, total loss of use or
loss of use of one or more parts of the body. Under the plain reading of the
Statute, the employer shall pay PPD benefits for impairment to the function of
the body. It was noted that while loss of function will often lead to some
actual impairment or incapacity, there are times that it will not. The
Commission further noted that an actual impairment of earning capacity is not a
prerequisite to recovery of PPD benefits. Therefore, the claimant was entitled
to PPD benefits for his carpal tunnel syndrome.
Claimant
Has 30 Days From the Date a Diagnostician Connects the Condition to Report
to the EmployerWork to
In
Sheryl Berend v. Fasco
Industries Inc., Injury No. 05-142895, the LJ denied the
claimant’s left shoulder repetitive motion and bilateral upper extremity
repetitive motion claims for lack of notice because the claimant did not
provide notice to the employer within 30 days. The Commission noted that the
claimant has to report an injury resulting from an accident within 30 days.
However, in the context of an injury resulting from an occupational disease,
the triggering event is the diagnosis of the condition. The Courts have defined
this to be when a diagnostician makes a causal connection between the
underlying medical condition and some work-related activity or exposure. The
Commission found that none of the claimant’s treating physicians identified a
causal connection between the claimant’s work and her bilateral upper extremity
problems. The Commission further found that on November 17, 2008, Dr. Volarich was the first diagnostician to make the causal
connection between the claimant’s underlying medical
condition and her work-related activity or exposure. Therefore, this is when
the 30 day notice period began to run. Since the claimant filed her claim on
August 10, 2006, more than 2 years prior to the date Dr. Volarich
issued his report, her claim was not barred.