MISSOURI
WORKERS’ COMPENSATION
CASE LAW UPDATE
OCTOBER 2014 - DECEMBER 2014
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Claim Denied Due to Inconsistencies Between Claimant’s
Testimony and the Records
In Gower v. Technical Plastics, Injury No. 05-135562,
the claimant alleged that on December 1, 2005 he was pushing a large container
when he slipped and fell to the ground, sustaining injury to his back. This
incident was not witnessed but the claimant did report it to his supervisors.
Evidence at the hearing showed that the claimant was incarcerated from May 1998
- April 2005, and during his incarceration he sustained at least five separate
injuries to his back. He treated with several providers for his back from 2001
- August 31, 2005, a mere three months prior to his alleged injury. The records
further showed that at the first medical visit following the alleged injury,
which occurred on December 7, 2005, the claimant reported that his symptoms
were the product of being beaten while he was incarcerated and there was no
mention of any work injury sustained on December 1, 2005. However, at subsequent
medical visits the claimant reported his symptoms were the product of a work
injury that occurred on December 1, 2005. He denied any prior back issues.
The claimant’s testimony at the Hearing contained many inconsistencies
and was contradictory to the objective evidence. His attorney produced a report
from Dr. Musich which stated that the claimant’s work injury was the prevailing
factor in his condition, and he assessed 50% PPD of the body. Alternatively,
the employer/insurer’s expert, Dr. Lange, felt that the claimant had 25% PPD of
the body, but there was no way to suggest that his disability was referable to
the alleged work incident. The ALJ determined that Dr. Lange was more credible
and also believed that the claimant was not credible or persuasive. Therefore,
the ALJ ruled in favor of the employer/insurer finding that the claimant failed
to meet his burden. On Appeal, the Commission summarily affirmed.
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Repetitive Motion Claim Denied Because
Employer/Insurer’s Expert Found More Credible Because He Reviewed More Records
In Anderson v. New World Pasta, Injury No. 11-107122,
the 66-year old claimant worked for the employer from September 1991 - January
2012, and for the last ten years of her employment she worked as a packer. Her
job duties as a packer required her to lift 50 - 60 pound rolls of plastic film
from floor to shoulder level, approximately 3 - 4 times a day; load blank boxes
from pallets to shoulder level that weighed a few pounds; use her right arm to
wind/pump an operating jack; and lift partially filled boxes if the packing
machine did not fill them properly, which occurred 0 - 4 times per shift. If
the packing machine was running properly, the claimant simply stood and
observed it.
The claimant alleged injuries to her right shoulder as a result of her
repetitive job duties. Additionally, she had a separate claim, which was not
part of this case, wherein she developed right long and ring finger triggering.
The claimant was initially seen by Dr. Schlafly for her hand complaints, who
recommended that she be seen by an orthopedic shoulder specialist for her right
shoulder complaints, but based on the claimant’s description of her job duties,
he did opine that her job duties were the prevailing factor in her need for
right shoulder treatment. Thereafter, she treated with Dr. Rende, who reviewed
a description of the claimant’s job duties both from her and from her employer,
and ultimately diagnosed the claimant with severe degenerative osteoarthritis,
which he believed had been present for 10 - 15 years. Dr. Rende did not believe
that the claimant’s job duties were the prevailing factor in causing her
condition.
Subsequently, the claimant obtained an MRI of the right shoulder on her
own, which showed severe arthritic changes; severe tendinopathy with partial
thickness tearing, as well as a full thickness supraspinatus tear; and longhead
biceps tendinopathy with tearing. Both Dr. Schlafly and Dr. Rende reviewed the
MRI and reiterated their prior opinions regarding causation. Specifically, Dr.
Rende stated that shoulders, as opposed to weight bearing joints such as knees
and hips, wear out as a result of the aging process and typically tear slowly
and steadily. The tears are not the result of an injury but rather due to the
normal process of aging. Additionally, evidence was introduced that the
claimant had a history of pre-existing right shoulder complaints and received a
settlement for 7.5% PPD of the right shoulder referable to a 1997 accident, as
well as 7.5% PPD of the right shoulder referable to a 2006 injury.
At a Hearing, an ALJ noted that Dr. Rende took a much more detailed
work history from the claimant, and also reviewed a job description provided by
the employer, whereas Dr. Schlafly relied solely on the claimant’s description
of her job duties. Additionally, the ALJ noted that Dr. Rende was an orthopedic
surgeon, whereas Dr. Schlafly was a hand surgeon. The ALJ found Dr. Rende’s
opinion more credible and persuasive, and held that the claimant failed to meet
her burden and denied compensability. On Appeal, the Commission summarily
affirmed.
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Carpal Tunnel Claim Denied Because Employer/Insurer’s
Expert More Credible Because He Reviewed the Claimant’s Job Duties
In Almany v. Union Electric Company, Injury No. 10-025613,
the claimant, a lubrication technician, alleged recurrent carpal tunnel
syndrome as a result of his job duties. He had bilateral carpal tunnel syndrome
in 2005 for which he underwent releases and received a settlement. In 2008 or
2009 the claimant was diagnosed with high blood pressure and Type II diabetes,
for which he was placed on medication. When the claimant began treating for his
recurrent bilateral carpal tunnel syndrome, he did not report his blood
pressure or diabetes to any of the treating physicians, and even denied those
conditions to one provider. At a Hearing, the employer-insurer introduced DVDs
of the claimant’s work duties. The first DVD was an 11 minute clip showing the
work that the claimant performed three days per week. On those three days, the
claimant performed the work depicted in the DVD for all eight hours of his work
shift. In that 11 minute period, the claimant used his hands for a total of 65
seconds, which consisted of holding a flashlight to view oil levels and raising
a dipstick to check oil levels. The second DVD showed the work that the
claimant did the other two days a week, and demonstrated that on those days he
would spend approximately 32 minutes and 35 seconds performing hand intensive
duties.
The employer’s general supervisor, who was previously employed as a
lubrication technician, testified that the claimant would use his hands 20% or
less during the day based on his personal experience and past knowledge. Dr.
Ollinger testified as the employer/insurer’s medical expert, and believed that
the claimant’s job duties were not the prevailing factor in his carpal tunnel
syndrome, but believed his condition was referable to his underlying diabetes.
Conversely, Dr. Volarich testified that the claimant’s job duties were the
prevailing factor in his carpal tunnel syndrome, as he had hand intensive
duties. The ALJ noted that when Dr. Volarich rendered his opinion, he did not
review the DVDs of the claimant’s job duties. The ALJ found Dr. Ollinger more
persuasive and denied compensability. On appeal, the Commission summarily
affirmed.
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Pro Se Claimant Awarded Only 15% Disability of
Shoulder Because His Expert’s Rating Did Not Distinguish Between Pre-existing
and Current Disability
In Tillis v. City of St. Louis, Injury No. 08-009726, the
claimant was working as a police officer when during an arrest he sustained an
injury to his right arm, shoulder and hand in 2008. The employer/insurer picked
the matter up as compensable and provided treatment. The claimant had a prior
right shoulder injury in 2005.
At a Hearing, the claimant represented himself pro se. Hearsay
objections were made to the majority of the medical evidence that the claimant
attempted to introduce, and therefore there was no evidence with respect to
permanency admitted at the Hearing. The ALJ noted that because the claimant did
not offer competent evidence regarding the distribution of disability resulting
from his 2005 injury and his 2008 work injury, his PPD Award would be somewhat
limited. The ALJ did find that the claimant sustained a compensable injury
based on the fact that the employer/insurer accepted liability in the case and
the claimant received authorized treatment, including surgery. Ultimately, the
ALJ awarded 15% PPD of the right shoulder. On Appeal, the Commission affirmed.
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Video of Claimant’s Job Duties Must Be an Accurate
Representation
In Buchanan v. SRG Global, Injury No. 12-103444, the
claimant alleged bilateral rotator cuff tears as a result of his repetitive job
duties. The claimant was employed with the employer for 32 years both as a
“racker” and as a “lead person.” The racker job involved lifting plastic car
parts that weighed several ounces up to 5 pounds. She had to attach the parts
to racks. The racker job required overhead work about 33% of the time. The lead
person job involved paperwork and administrative duties, such as counting the
number of racks that were filled. In May 2009, she worked as a racker and a
lead person. She worked exclusively as a racker from 2010 - 2012. She was
scheduled to work 40 hours a week, but her pay stubs reflected that she
frequently worked numerous overtime hours.
The employer/insurer’s expert, Dr. Emanuel, initially found that the
claimant’s work was the prevailing factor in her bilateral shoulder problems
but changed his mind after watching a video supplied by the employer depicting
the claimant’s job duties. After review of that video, Dr. Emanuel believed
that the claimant worked at a very leisurely pace and her job duties were not
the prevailing factor in her condition. Conversely, Dr. Woiteshek, the
claimant’s expert, believed that the claimant’s job duties were the prevailing
factor in causing her shoulder problems. Specifically, Dr. Woiteshek noted that
there was a vast difference between lifting near the body and lifting with the
arms extended, as the claimant was required to do.
At a Hearing, an ALJ found Dr. Emanuel more persuasive, and therefore,
found that the claimant’s job duties were not the prevailing factor in her
injuries, and denied compensation.
On appeal, the Commission reversed and found her injuries compensable.
Specifically, the Commission stated that they also reviewed the video of the
claimant’s job duties provided to Dr. Emanuel, and disagreed with his
assessment that she worked at a leisurely pace. Additionally, they stated that
the claimant’s co-worker testified that the employer could run the line at
various speeds so it was unclear whether the video accurately represented the
typical work the claimant performed or the pace at which it was performed.
Therefore, the Commission found Dr. Woiteshek more persuasive and found that
the claimant’s job duties were the prevailing factor in her shoulder problems.
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Without Expert Testimony Claimant Can Not Establish
Causation
In Fineman v. Stan Koch & Sons, Injury No. 13-078932,
the claimant was employed as a commercial truck driver. At the hearing, his
deposition, and in his recorded statement, the claimant stated that on October
18, 2013 he began to feel pain in his left arm. At his deposition, the claimant
stated that he believed he hurt his arm either while pulling the fifth wheel or
while raising and lowering the landing gear. At trial, he testified he did not recall
what caused the pain. In his recorded statement, the claimant stated he had no
clue if he did something to acutely injure his arm or if his condition happened
over time, but stated he could not think of a specific incident that caused his
symptoms. The claimant treated on his own. His medical records indicated that
he frequently denied any traumatic event when asked by providers. It was not
until a December 5, 2013 visit to Dr. Wells, approximately three months after
the date of injury, that the doctor noted the claimant did have a job as a
truck driver with repetitive motions. However, Dr. Wells did not indicate an
exact diagnosis. Neither the employer/insurer nor the claimant obtained a
causation report.
At a Hearing, the claimant asserted that he either suffered an accident
or an occupational disease, and that the Division of Workers’ Compensation
could, and should, determine if the injury was compensable despite not having
any expert testimony, particularly since the employer/insurer refused to provide
treatment. Conversely, the employer/insurer argued that the claimant failed to
meet his burden, as he did not provide an expert causation opinion. The ALJ
agreed with the employer/insurer and found that the claimant failed to meet his
burden to show that his symptoms were causally related to a work accident or
occupational disease. On Appeal, the Commission summarily affirmed.
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Claim Compensable Because Lease Grants Exclusive Use
of Parking Lot
Scholastic, Inc. v. Viley, Case No. WD77546 (Mo. App. Ct. 2014)
FACTS:
At the end of his shift, the claimant
was walking outside of his employer’s building and as he walked across the
adjacent parking lot heading for his vehicle, he slipped and fell on snow and
ice, sustaining an injury to his right knee. At a Hearing, the claimant
testified that he always parked in the same parking lot, which was across the
road from his employer. Evidence demonstrated that the employer did not own the
parking lot where the claimant’s accident occurred. Instead, the employer
leased the parking lot in which the claimant fell. The lease included a
provision granting the employer the “exclusive use for parking of tenants’
automobiles.” The ALJ found that the claimant’s injury was not compensable. On
Appeal, the Commission reversed, finding the injury was compensable.
HOLDING:
On Appeal, the Court stated that the
Extension of Premises doctrine applies, and an injury is compensable, if the
area in which the accident occurs is owned or controlled by the employer. The
Court was particularly persuaded by the fact that the lease granted the
employer the exclusive use of the parking lot. Therefore, they found that the
employer did control the parking lot and as such, the claimant’s injury arose
out of and in the course of his employment.
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Claim Compensable Because Employer Exercised Power by Removing Snow From the Parking
Lot it Leased
In Beem v. Missouri Department of Social Services, Injury No.
10-005912, the claimant was injured when she fell on her employer’s parking
lot sustaining an injury to her ankle. Her employer leased its building and the
parking lot. The parking lot in which the claimant fell was used by other
employees and was adjacent to the employer’s building. The lease contained
language granting the employer 23 parking spaces and stating that the lessor
agrees to direct and pay for removal of snow and ice from the sidewalks and
parking area. Evidence showed that while the lessor was obligated to remove the
snow on the parking lot, they often did not do so and in such occasions, the
employer would remove the snow either on its own or by hiring a third party.
Prior to her date of injury, the claimant arrived at the employer and found the
parking had not yet been cleared of snow. The claimant then contacted the
lessor who stated he had no one under contract to clear the snow. Therefore,
the claimant contacted a third party, Crain’s, to remove the snow.
Subsequently, the lessor did contract with Crain’s to remove snow from the
parking lot, who cleared the lot after the snow event which occurred just
before the claimant’s injury. On that occasion, the third party removed and
piled the snow onto the sidewalk, which subsequently melted onto the parking
lot and froze to form the black ice patch on which the claimant fell.
At a Hearing, an ALJ determined that the claimant’s injury was not
compensable because it did not arise out of and in the course of scope in her
employment because the employer did not own or control the parking lot in which
the injury occurred.
On Appeal, the Commission reversed. The Commission began by stating
that the test to determine whether the claimant was injured in the course and
scope of her employment was 1) Whether the injury producing accident occurred
on the premises owned or controlled by the employer; 2) Whether that portion of
such premises is part of the customary, or . . . usual and acceptable route or
means used by workers to get to and depart from their places of labor; and 3)
That portion of such premises was being used by the injured worker to get to or
depart from a place of labor at the time of the injury. The Commission
determined that all three prongs were met.
The Commission was persuaded by the fact that the lease contained no
language which reserved exclusive control of the parking lot to the lessor.
Also, the lease did not contain language which prohibited the employer from
removing snow and ice from the parking lot area on its own. Additionally, the
Commission stated that the employer exerted control over the lot by removing
snow from the lot and contracting a third party to clear the parking lot on at
least one occasion. Therefore, the
Commission found that the employer controlled the parking lot. The Commission further
noted that the black ice that the claimant slipped on was formed due to the
manner in which the snow was cleared from the parking lot and therefore, she
would not have been equally exposed to that hazard in her normal non-employment
life. Consequently, the Commission found that the claimant’s injury was
compensable.
Safety Violation by Employer Only Results in a Penalty if the Violation Caused the Claimant’s Injury
In Horne v. Price Gregory, Injury No. 09-106524, the
claimant was a truck driver who was injured when his tractor trailer was
involved in a motor vehicle accident on October 7, 2009. The claimant could not
recall whether the accident occurred because of fatigue or because the load he
was transporting shifted. Between July 12, 2009 and October 4, 2009, a 12 week
period, the claimant averaged a little over 86 hours of work per week.
Additionally, from October 4, 2009 through the claimant’s date of accident,
October 7, 2009, he had worked 36 hours and had worked 76 hours the week prior,
for a total of 112 hours over the course of 10 days. This was in clear
violation of Statute which states that drivers shall not be allowed to drive 70
hours or more during 8 consecutive days.
Immediately following the incident, the claimant experienced cervical
spine symptoms. He did not begin experiencing symptoms in his right arm until
November 1, 2011, when he turned his neck and felt a sharp pain radiating down
his arm. The employer/insurer did provide treatment for the claimant’s right
arm symptoms until their expert, Dr. Kitchens, opined that the claimant’s right
arm symptoms were not caused by his cervical injury and therefore, not related
to the work injury. The claimant was placed at MMI on April 29, 2010.
At a Hearing, the main issues were compensability of the claimant’s
right arm and whether the employer/insurer committed a safety violation.
With respect to the compensability of the claimant’s right arm, the ALJ
found Dr. Koprivica, the claimant’s expert, more credible and determined that
the claimant’s right arm symptoms were the product of the claimant’s injury.
With respect to whether the employer/insurer committed a safety
violation, the claimant asserted that he should be entitled to a safety
violation because his employer allowed him to drive for more than 70 hours
during 8 consecutive days. At the Hearing, Mr. Ezell, the safety manager for
the employer, testified that the regulation on number of hours drivers could
work were designed to prevent accidents. Based on that testimony, the ALJ
determined that the claimant was entitled to a 15% increase in all benefits
paid based on violating a safety Statute.
On Appeal, the Commission affirmed the decision except it disagreed
with the ALJ’s imposition of a 15% increase in benefits pursuant to a safety
violation. Specifically, the Commission did not believe that the employer’s
allowing the claimant to drive in excess of the maximum hours permitted by
Statute caused the claimant’s injuries. The Commission noted that the claimant
remembered very little about the accident and he testified that the accident
occurred either from the load shifting or the fact that he was tired from
working and his reaction time was slowed. As such, the Commission believed that
it was speculative to state that the claimant’s injury was a result of the
employer’s violation of the Statute.
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Under Old Law Employer Can Not Terminate Benefits on
its own Because Claimant Refused to Submit for Medical Examination
SSM Healthcare v. Hartgroves, Case No. WD77560 (Mo. App. Ct. 2014)
FACTS: The claimant injured her back in 2001 while lifting a
300 pound stroke patient. She proceeded to a hearing, at which time an ALJ
found that she was PTD. On appeal, the Commission affirmed and awarded PTD
benefits. Thereafter, the employer scheduled the claimant for a medical
examination which she did not attend. The employer/insurer then suspended her
benefits. The claimant filed a Motion to Compel the employer to comply with the
Commission’s Final Award. The employer filed a response, along with a request
that the Commission compel the employee to attend a medical examination, and
asserted that it was justified in terminating the claimant’s benefits because
she failed to appear for the previously scheduled examination. The Commission
denied both parties’ Motions and stated that the employer/insurer is not
authorized to suspend benefits based on alleged failure to attend a reasonable
medical examination and found the claimant was still entitled to benefits. The
employer appealed.
HOLDING:
On Appeal, the Court noted that
Statute does state that if the employee refuses to submit to an examination,
compensation shall be forfeited. However, the Court also noted that the Statute
states that the Commission has the authority to modify an Award due to a change
in the condition of the injured worker. Ultimately, the Court believed that the
employer cannot unilaterally decide the claimant is no longer entitled to
benefits, regardless of whether they refuse to submit to an examination, as
that decision must be made by the Commission. Notably, the Court did state that
the injury occurred in 2001, and therefore, the mandate passed in 2005 that the
workers’ compensation Statute be strictly construed did not apply in this case.
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Claim Not Compensable Because Accident Only a
Precipitating Factor in Causing the Claimant’s Hypertensive Crisis
In Malam v. State of Missouri/Department of Corrections,
Injury No. 11-062949, the claimant was employed as a prison guard. On
August 12, 2011 the claimant, along with two co-employees, subdued a prisoner,
taking the prisoner to the ground and then handcuffing him. Immediately
thereafter, the claimant was walking the prisoner back to a housing unit when
he began to notice shortness of breath and felt like his lungs were filling up.
The claimant’s co-employee testified that he did not notice anything wrong with
the claimant at the time of the altercation or while walking with the prisoner.
After escorting the prisoner, the claimant went into his office to get a drink
and began to spit up blood. An ambulance was called and the claimant eventually
lost consciousness, which he regained one week later. The majority of the
medical records stated that he fell and someone fell on top of his chest.
However, the claimant testified that no one landed on his chest at any point
during the altercation.
The employer/insurer’s expert, Dr. Puricelli, opined that the
claimant’s condition was not related to the work event, but rather, to his
underlying hypertension. Conversely, the claimant’s expert, Dr. Koprivica, believed
that the work incident was the prevailing factor in precipitating his
hypertensive crisis, as he felt that in the absence of the work incident, it
would be impossible to predict that the claimant would have developed the
hypertensive crisis. An ALJ believed Dr. Puricelli more persuasive and found in
favor of the employer/insurer stating that an unexpected traumatic event or
unusual strain occurring at a specific time and place is not alone sufficient
to satisfy the definition of an “accident.” The ALJ also found that the
claimant’s work was merely a triggering or precipitating factor.
On Appeal, the Commission affirmed the ALJ’s holding but disagreed with
the ALJ’s reasoning. Specifically, the Commission stated that pursuant to
Statute an unexpected traumatic event or unusual strain occurring at a specific
time and place is sufficient to satisfy the definition of “accident.”
Therefore, the claimant did sustain an accident. However, an injury is not
compensable because work was a mere triggering or precipitating factor. The
Commission noted that Dr. Koprivica opined that the altercation was the
prevailing factor in precipitating the claimant’s hypertensive crisis.
While the Commission did believe that the claimant sustained an accident, the
pertinent inquiry is whether he sustained a compensable injury. In other words,
they denied compensability because his accident, the altercation with
the prisoner, was merely a precipitating factor of his injury, his
hypertensive crisis.
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Unexplained Fall Found not Compensable
In Scott v. Bellefontaine Gardens Nursing & Rehab Center,
Injury No. 11-099793, the claimant was walking on December 3, 2011, when
she fell injuring her right leg. She testified that she does not know how or
why she fell. The claimant was taken to Touchette Hospital and reported to the
emergency room doctors that she did not know how she fell. One of those
emergency room doctors stated that the claimant’s knee “gave out” and that the
claimant denied any trauma. Thereafter, the claimant treated at Concentra on
December 16, 2011, and reported that on her date of injury she was directing an
aide to assist a resident when she turned and suddenly fell down, although she
again reported she did not know why she fell. Additionally, the claimant stated
that she did not trip on anything or slip. At a Hearing, the ALJ noted that the
claimant was simply unable to describe how she fell, and there was no
indication that she tripped on anything, was performing a work activity when
she fell, or that there was anything on the floor that caused her to fall.
Therefore, it was determined that the claimant’s injury did not arise out of
her employment, and was not compensable. On Appeal, the Commission affirmed.
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ALJ Can Not Award PPD if Claimant Not at MMI;
Occupational Disease Found Not Compensable Because No Symptoms Prior to Alleged
Date of Injury
In White v. Ameren UE, Injury No. 05-089838, the claimant
alleged injuries to his bilateral wrists and shoulders as a result of his
repetitive job duties using an injury date of August 16, 2005. The claimant had
chronic problems with this right shoulder since an injury in the mid 1990s,
when he sustained a rotator cuff tear which was treated surgically. The
claimant did not suffer from left shoulder symptoms until February 20, 2009.
Thereafter, the claimant treated on his own with Dr. Schaberg for both
shoulders. He was diagnosed with bilateral carpal tunnel syndrome; and
bilateral shoulder impingement syndrome and rotator cuff tendinitis. He
underwent a right carpal tunnel release and both the claimant’s and
employer/insurer’s experts recommended a left carpal tunnel release which the
claimant had not yet undergone at the time of the hearing.
Dr. Rotman, the employer/insurer’s expert, opined that the claimant’s
current right shoulder symptoms were not the result of his job duties, but
rather referable to his mid 1990s injury. Conversely, Dr. Schlafly, the
claimant’s attorney, did believe his job duties were the prevailing factor in
his bilateral shoulder symptoms. At a Hearing, an ALJ found that the claimant’s
shoulders were not compensable, but did Award 20% PPD of each wrist referable
to bilateral carpal tunnel syndrome and ordered the employer/insurer to provide
treatment for the claimant’s left carpal tunnel syndrome.
On Appeal, the Commission modified the ALJ’s Award. Regarding the
claimant’s left wrist, the Commission agreed that his carpal tunnel syndrome
was compensable. However, it noted that the ALJ’s Award of both PPD referable
to the left wrist and future medical treatment for the left wrist were
incompatible, in light of the fact that PPD cannot be assessed until the
claimant reaches MMI. Based on the experts’ opinions, the Commission found the
claimant had not yet reached MMI and was not entitled to any PPD for the left
wrist.
Regarding the claimant’s left shoulder, the Commission noted that the
Claim for Compensation alleged a date of injury of August 16, 2005, and there
was no indication in the records that the claimant reported left shoulder
symptoms until February 22, 2009. Additionally, Dr. Schlafly, the claimant’s
expert, provided a report that did not specifically state that the claimant’s
occupational disease occurred on or before August 16, 2005. Therefore, they
denied the claimant’s left shoulder as there was no proof or evidence that he
sustained any left shoulder occupational disease as of August 16, 2005.
Regarding his right shoulder, the Commission overturned the ALJ’s
decision, and did find that injury compensable. Specifically, the Commission found
that Dr. Rotman’s testimony was not persuasive because he stated that
impingement syndrome or rotator cuff tendinitis could never constitute a
compensable occupational disease unless one’s job requires repetitive overhead
work for at least four hours a day. The Commission noted that Dr. Rotman did
not refer to any medical literature or scientific study to report this
hypothesis. Therefore, they did not believe that Dr. Rotman’s opinion could be
given any weight and consequently sided with Dr. Schlafly, who did believe that
the claimant’s right shoulder condition was the result of his job duties.
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For Occupational Diseases, the Statute of Limitations
Begins to Run When a Diagnostician Connects the Condition to Work – Claimant’s
Personal Belief That Condition is Work-Related Has No Effect
In Clevenger v. Ford Motor Company, Injury No. 10-019275,
the claimant worked for his employer for over 30 years and eventually developed
tinnitus, which he alleged was due to repeated exposure to loud noises at work.
The employer conducted annual hearing tests, which as early as 1990 showed that
the claimant was developing hearing loss and tinnitus. The employer’s doctors
told him that his hearing loss and tinnitus were the result of aging, and
advised him to see his personal physician. The claimant retired on September 3,
2006. He did not see his personal physician until March 2010, who at that time
connected the claimant’s hearing conditions to his work activities. Two weeks
after this visit with his personal physician, the claimant filed his Claim for
Compensation. At a Hearing, the claimant
testified that while still employed with Ford Motor Company, he told people at
his employer that his hearing loss and tinnitus were work-related. The ALJ
ruled that the Claim was barred by the Statute of Limitations because it became
reasonably discoverable while the claimant was still employed that his hearing
conditions were caused by his work activities. Therefore, the claimant failed
to file his Claim for Compensation within two years from the date that it
became reasonably discoverable that his conditions were caused by work
activities. The claimant appealed.
On appeal, the Commission stated that the claimant was neither a doctor
or audiologist, and considering that the employer’s doctors continually assured
him that his hearing loss and tinnitus were the effects of aging, it was not
apparent or reasonably discoverable that he had suffered a work injury until
his March 2010 visit with his personal physician. Therefore, the Commission
reversed the ALJ’s finding that the Claim was barred by the Statute of
Limitations, and awarded the claimant 15% PPD of the body as a whole referable
to his tinnitus. They did not address or award any disability with respect to
his hearing loss.
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Employer/Insurer Responsible for Modifications to Vehicle and for Difference in
Cost of Average Automobile and the Van Purchased
In Noland v. Marsh Field Rural Fire Association, Inc., Injury
No. 11-104962, the claimant lost motion of the left side of his body after
being struck in the head by a falling tree while at work. The employer/insurer
conceded that PTD benefits were owed and the sole issue was whether the
claimant was entitled to reimbursement for purchasing a van he needed to
implement modifications. Prior to the injury, the claimant normally purchased
an Impala every 5 - 6 years. Following the injury, he purchased a van for a net
price of $29,635.00. The employer/insurer paid for accommodations to the van
but refused to pay for any of the purchase price of the van. At a Hearing, an
ALJ noted that when a modified vehicle is required due to the claimant’s
injuries, the claimant is entitled to the difference in the cost of an average,
mid-priced automobile of the same year as the purchased van less the cost of
the converted van. Thereafter, the claimant is responsible for the cost of
maintenance of the van.
The ALJ found that in this instance the only evidence presented as to
the cost of a mid-sized vehicle was given by the claimant’s wife regarding a
2013 Impala, which was valued at an estimated $17,900.00. No evidence was
presented by the employer/insurer with respect to the cost of another mid-sized
vehicle. Therefore, an ALJ awarded the difference between the van and the 2013
Impala estimate, for a total of $11,735.00. Additionally, the ALJ found that
the employer/insurer would be liable for modifications to additional vehicles
in the future when the claimant’s current van needed to be replaced. On Appeal,
the Commission summarily affirmed.
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Employer/Insurer May be Responsible for Past Medical
Expenses Even if Claimant Treated
on Her Own
In Quast v. RPCS, Inc., Injury No. 11-104621, the
claimant began working for the employer in 2006 as a cashier. Her duties
required her to utilize a belt scanner to process purchases. In 2007 her job
duties were expanded to include that of a bookkeeper, which involved making up
the cash register tills, counting money, checking the cash register tills and
record bookkeeping entries on a computer. In October 2009 she was promoted to
guest relations manager, and her duties were expanded to include supervising
and assisting the cashiers, assisting and directing customers, answering the
phones and working the service desk handling returns and other orders. The
claimant alleged occupational diseases to both her upper and lower extremities
as a result of her work.
Specifically, the claimant asserted that she had developed
tenosynovitis of the left foot and ankle because she was required to be on her
feet through her entire work day. She also alleged bilateral carpal tunnel
syndrome. When the claimant began to notice her symptoms she treated with a few
physicians, who did diagnose carpal tunnel syndrome, but did not connect that
condition to work. It was not until after the claimant had received some
treatment that she informed her employer that she believed this condition was
work-related. Following notice of the same, the employer did provide authorized
treatment.
Dr. Koprivica, the claimant’s expert believed that the claimant’s left
foot and ankle symptoms were the result of her constantly being on her feet
while at work, and also related her bilateral carpal tunnel syndrome to her
repetitive work duties. Conversely, Dr. Corsolini, the employer/insurer’s expert,
did not believe that any of the claimant’s conditions were referable to her
work but rather due to her age and weight.
At a Hearing, an ALJ found the claimant’s left ankle and foot symptoms
and carpal tunnel syndrome compensable. The ALJ denied the employer/insurer’s
notice defense stating that when the claimant initially began treating and was
diagnosed with carpal tunnel syndrome, no physician connected that condition to
work. Additionally, the ALJ awarded the claimant past medical expenses for the
treatment that she received when she first began treating on her own, because
although the claimant treated on her own and her employer, in fact, had no
knowledge of any injury at the time that she was treating, the claimant did not
realize she was receiving treatment for a work-related condition.
Hernia Pre-Existing the Work Injury Not Compensable
In Sadic v. SEMCO Plastic Company, Inc., Injury No. 10-096313,
the claimant injured his stomach/groin on September 17, 2010, while working on
a machine at his employer’s. Specifically, the claimant was attempting to pull
a part out of the machine when he felt a strong pain in his groin area and felt
something bulging. The claimant alleged that his hernia was as a result of an
acute injury or an occupational disease. At a Hearing, an ALJ stated that
occupational disease hernia claims are not compensable injuries under the
Missouri Workers’ Compensation Act, as the Statute specifically requires that
there be an “accident.” Given that the ALJ noted the claimant could not bring
an occupational disease claim for his hernia, he must show that he sustained an
accident. The claimant testified that he did not have a prior hernia. However,
the medical records showed that the claimant reported a history of left
testicle swelling on and off for a year but he was normally able to “reduce the
bulge,” until his work injury occurred. Additionally, none of the claimant’s
medical records show that he reported an accident or unusual strain that
occurred at work on September 17, 2010. Dr. Musich, the claimant’s expert,
testified that the claimant sustained a hernia which was caused by his
“employment” between late 2009 and September 17, 2010. In order to show that he
sustained an accident, the ALJ stated the claimant must show that his hernia
did not exist prior to September 7, 2010, which based on the medical records,
the claimant failed to do. The ALJ noted that Dr. Musich did not causally
connect the hernia to a specific date, event or unusual strain, and therefore,
did not establish that the claimant sustained a compensable accident on
September 17, 2010.
On Appeal, the Commission affirmed as they believed
that the claimant developed a hernia in
2009 which failed to satisfy the statutory requirement
that the hernia not pre-exist the accident or
unusual strain which allegedly caused the injury. Interestingly, the Commission disagreed with
the ALJ that a hernia could never be compensable as an
occupational disease.
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Seasonal Workers Are Only “Employees” if They Were
“Furnished” to the Employer by Third Party
Southerly v. United Fire & Casualty Company, Case No. SD33165 (Mo. App. Ct. 2014)
FACTS:
The claimant worked at the employer’s
cotton gin for the four month ginning seasons in 2007, 2008, and 2009. He
sustained a work injury in 2009. He received a $150,000 in benefits from the
employer’s workers’ compensation insurer. He filed a personal injury suit
against four co-workers and reached agreements. He obtained a $4 million
judgment collectable only from the employer’s commercial general liability
(CGL) and umbrella insurance policies. The insurer’s policies did not cover an
injury if the claimant was an “employee.” The claimant argued that he was not
an employee because he was a temporary worker. The trial court refused to
impose judgment on the insurer and the claimant appealed.
HOLDING:
The Court stated that the issue was
whether the claimant was an “employee” and looked to prior case law. They
stated that to determine whether he was an “employee” in this instance, they
needed to determine whether his seasonal employment qualified him as a
“temporary worker.” The Court defined a temporary worker as one who has been
furnished to the insured by a third party. The claimant alleged that he was a
temporary worker because he was recommended by one of the employer’s workers in
2007, when he first began working at the employer. The Court did not find this
argument persuasive. The Court deemed each ginning season to be a new hiring,
and as such, the claimant had not shown that he had been furnished to the
insured by a third party when he was hired in 2009, when he was injured. Since
the claimant was not a temporary worker, he was an “employee” as defined in the
Workers’ Compensation statute and could not recover from the employer’s general
liability or umbrella policies.
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Fund Not Liable if PTD From Last Injury Alone
In Elder v. Treasurer of Missouri, Injury No. 11-026274,
the claimant sustained a work injury when he was involved in a motor vehicle
accident that caused burns over 6% of his body, respiratory insufficiency, a
cervical fracture at C2, difficulty with vision due to floaters in the right
eye, traumatic left cubital tunnel syndrome, and profound hearing loss on the
right side secondary to a traumatic head injury. The claimant had pre-existing
conditions of low back complaints, an injury to his forearm, bypass surgery,
and a right heel injury. The claimant settled his claim against the employer
and went to a hearing against the Fund. Interestingly, at the Hearing, the
claimant’s own experts testified that he was permanently and totally disabled
as a result of the last accident alone. The ALJ agreed the claimant was PTD as
a result of his last injury alone, and refused to impose liability on the Fund.
The claimant appealed, but the Commission affirmed the ALJ’s decision.
Top
Obesity Can Constitute a Pre-Existing Disability
In Kolar v. First Student Incorporated, Injury No. 09-084011,
the claimant, who was morbidly obese, worked as a driver. While performing his
pre-trip inspection, the claimant went to examine the underside of his vehicle
when he lost his balance and sustained an injury to his right knee. In the
period that the claimant was recovering from his right knee injury, he began to
develop symptoms in the left knee, which he believed were due to being forced
to put extra weight on his left knee, since his right knee was not stable. At a
Hearing, the ALJ determined that the claimant’s left knee condition was a compensable
injury because although his left knee was not injured in the actual work
accident, those symptoms stemmed from favoring his compromised right knee.
Additionally, the ALJ imposed liability on the Fund, finding that the
claimant’s morbid obesity was a pre-existing permanent disability. On Appeal,
the Commission summarily affirmed.
