Burns v. Wal-Mart Associates, Injury No. 20-025625

FACTS: Claimant testified that her injury at work occurred on April 24, 2020. She stated that as she was walking from the break room to her workstation in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling. Her next memory was sitting on the pallet with a paramedic helping her to get up. She alleged injuries to her head and left shoulder.

Although the ambulance and emergency room records indicated that claimant might have experienced a syncope episode or fainted, there was no evidence showing that the first responders or the emergency room personnel asked claimant whether she had fainted or experienced a syncope episode. There was no evidence showing that they had even asked claimant what happened. In addition, the ambulance records indicated that claimant was not oriented as to the time, meaning that she was confused and the medical records confirmed that she was knocked unconscious and suffered a concussion when she struck her head on the hard floor surface or pallet. She testified to short-term memory problems as a result of her concussion. Wal-Mart did not deny that it left a pallet impeding the trafficway or aisle where claimant fell however argued that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of an unrelated to the employment in normal non-employment life. The ALJ awarded benefits and the claimant appealed.

HOLDING: The Commission found that while it is true that claimant was walking when she tripped on the pallet and fell and that she walks in her personal non-employment life, there was a clear nexus in claimant’s case between her injury and her work and her risk for the injury. The Commission noted that the focus should have been on her tripping and falling on a pallet Wal-Mart left in a congested aisle in the store and not merely on her walking as she does in her personal non-employment life or whether she possibly could have tripped on some pallet in her personal non-employment life.

Thus, unlike the Johme case, where Ms. Johme’s work had nothing to do with the risk of her twisting and turning her ankle and falling off her sandal, claimant’s work was the cause of her injury when she tripped on a pallet Wal-Mart left in a congested aisle and falling and injuring her head and shoulder. In addition, there was no evidence showing that claimant was “equally” exposed to the same risk of tripping on a pallet and falling in her personal non-employment life.

Therefore the Commission affirmed the ALJ’s Award and decision.

Taylor v. Darden Restaurants, Inc./Olive Garden, Injury No. 17-098731

FACTS: On December 13, 2017, claimant injured her neck while at work. She bent over to locate a lid, straightened up, and a box fell from a shelf, striking her on the head. At the time of the incident, she was working under permanent light duty restrictions as a result of having a cervical fusion in January 2017 as a result of a May 3, 2015, work injury.

After her December 13, 2017 work injury, she was referred to Dr. Mirkin by Concentra who stated that the claimant had no symptomology prior to the December 13, 2017 incident and developed symptoms that correlate with her MRI findings after the 2017 incident. He opined that the prevailing factor in her need for treatment was the December 13, 2017 incident working at Olive Garden.

Following the December 13, 2017 work injury, Dr. Bernardi noted in his IME report the claimant’s ongoing symptoms after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. He opined that the claimant had a poor result from her January 30, 2017 surgery and that her current symptoms most likely represent chronic cervical myeloradiculpathy related to her prior work accident in May 2015 and that the more acute symptoms were related to an aggravation of her residual cervical stenosis. He further found that the claimant sustained no PPD to her cervical spine attributable to her December 13, 2017 work injury. The ALJ found that the employer was responsible for treatment and the employer appealed.

HOLDING: The Commission noted that based on the expert opinion of Dr. Bernardi, it was not persuaded that the claimant’s December 13, 2017 work injury was the prevailing factor causing her current cervical condition and need for surgery. They discredited Dr. Mirkin’s contrary opinion because it was based on his incorrect assumption that the claimant had fully recovered and had no physical complaints or limitations after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. Therefore, the Commission reversed the ALJ’s temporary or partial Award for additional medical treatment regarding the cervical spine.

Dahman v. City of Clinton, Injury No. 17-090567

FACTS: On August 6, 2017, claimant was working as a police officer for the City of Clinton when he heard a radio report from his co-worker and friend, Officer Michael, that shots had been fired and that an officer was down. Claimant immediately responded and found Officer Michael on the ground with another officer attending to him. Officer Michael was still alive when claimant arrived.

Claimant was tasked with the duty of responding to where the suspect’s vehicle had apparently crashed after the shooting. He had to stay at the scene for most of the evening into the early morning to secure it. He later learned that evening that Officer Michael had passed away.

Subsequently, the City of Clinton took immediate measures to provide counseling to claimant. He then sought treatment with his family physician for anxiety. Thereafter, he left the City of Clinton to work as an insurance adjuster, with this event being the main factor for him leaving his position. However, his employment as an adjuster ended when he failed to show up to work on a number of occasions for symptoms which he attributed to the shooting event.

Prior to the shooting, claimant had other events in his life including responding to the death of a child as an officer and issues with alcohol use. However, he did not take any medication for anxiety, did not have difficulty sleeping, or other symptoms.

Dr. Logan, the employer’s expert, diagnosed claimant with PTSD, mild major depression, and alcohol use disorder. He opined that the August 6, 2017 shooting event did rise to the level of extraordinary and unusual mental stress. He also rated claimant’s PPD at 10% of the body.

Dr. Halfaker, the claimant’s expert, opined that the event of August 6, 2017 and the stress that it caused was both extraordinary and unusual. He provided a 10% to 14% disability of the body.

HOLDING: Pursuant to the statute “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it is demonstrated that the stress is work-related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events”.

The objective standard for determining whether claimant’s stress was compensable is whether the same or similar actual work events would cause a police officer extraordinary and unusual stress. The claimant must demonstrate the actual events he experienced were such that a reasonable policeman would experience extraordinary and unusual stress.

The City of Clinton argued that police officers’ shootings are not extraordinary, but the ALJ declined to accept this reasoning. The particular facts of claimant’s experiences, including but not limited to, responding to the scene of Officer Michael’s shooting which was a friend, knowing the suspect was still at large and had a long rifle, and knowing that the protective vest would not help along with claimant feeling like a sitting duck in the dark, are all factors in support of the Award for compensation to the claimant.

The ALJ awarded the claimant 10% PPD of the body as a result of the events of August 6, 2017. The Commission affirmed the Award and decision of the ALJ.

Wulf v. Tradesmen International, Inc., Injury No. 18-113120

FACTS: The sole issue to be addressed was jurisdiction. The accident occurred on November 14, 2018 in Marietta, Georgia.

The employer/insurer disputed and denied that Missouri had jurisdiction. They admitted that the Kansas Division of Workers’ Compensation had jurisdiction over this claim and admitted claimant sustained a compensable injury. Benefits were immediately started and continued under the Kansas Workers’ Compensation Act.

Claimant testified that he originally applied for employment with Tradesmen, the employer, in July or August of 2013. He filled out an application online at the job center in Leavenworth, Kansas where he was living at the time. Following his completion of the application, he was invited to the Tradesmen office located in Kansas City, Kansas for an interview.

The claimant and Tradesmen had a rather unique employment relationship. Claimant did not have an office which he reported to on a daily basis. Instead, he reported to whatever project might be available for the clients of Tradesmen. All job assignments were provided by way of telephone call or text messages to him, at times daily, or a weekly basis. However, there was a sporadic nature to claimant’s employment assignments. There would be times when he was working full regular duty, and at other times, there would be gaps in employment of two months, six months, or longer.

In September 2017, claimant was laid off from a different employer. As he was in his car, his phone flashed that Tradesmen was calling about a job assignment. This was a brief phone call. Claimant then received a text message with more information about the job assignment in Overland Park, Kansas. The ALJ determined that Missouri did not have jurisdiction over this claim and the claimant appealed.

HOLDING: Pursuant to statute, Missouri has jurisdiction only under three circumstances: (1) when the injury occurs in Missouri; (2) when the claimant’s employment is localized in Missouri in 13 weeks leading up to the date of injury, and (3) when the contract of employment was entered into in Missouri.

In this case, the claimant was injured in Georgia and all of claimant’s employment in the 13 weeks prior to the injury occurred either in Kansas or Georgia. With regard to the contract of employment, it was entered into in Kansas in August of 2013. The claimant conceded that he had an interview at the Kansas City, Kansas office of Tradesmen and was offered employment at that time.

To form a contract, there must be a meeting of the minds between the parties. That occurred in August of 2013. However, there was no “meeting of the minds” to form a new contract of employment in September of 2017. It was the claimant’s burden of proof to convince the Court there was somehow a new contract of employment during this brief phone call with the representative from Tradesmen. The pattern and practice of conduct between the parties clearly demonstrates otherwise. Therefore the Commission found that the claimant failed to sustain his burden of proof and Missouri does not have jurisdiction. Therefore the Award of the ALJ was affirmed.

White v. Schrieter Materials LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-046371

FACTS: On June 14, 2018, the 65-year-old claimant was working on the back end of a concrete mixer truck and fell to the ground striking his head and breaking his arm. Due to the accident, he suffered closed head trauma with subdural hematoma, nasal fractures, comminuted left wrist fractures, a cervical fracture, and severe contusion to the right calf. After the accident, the claimant was transported to Mercy Hospital and underwent an open reduction internal fixation of the distal radius fracture to his left wrist. For his C7 end plate fracture, he received non-operative conservative treatment. He was discharged from the hospital two days later on June 17, 2018. Thereafter he began occupational therapy, and then physical therapy.

It was noted that claimant continued to use a cane at times after his work injury, but this was because of left hip pain which was unrelated to the work-related injury. The claimant had a number of pre-existing conditions. He suffered a prior work-related injury from a 2006 motor vehicle accident and was awarded PPD of 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for a rib injury, 8% of the lumbar spine, and 15% for depression.

With respect to the June 14, 2018 work accident in question, Dr. Volarich opined that the claimant had significant restrictions for his post-concussion syndrome and confirmed that these restrictions related solely to his June 14, 2018 accident. The claimant’s testimony also supported the restrictions provided by Dr. Volarich as a result of the head injury from the June 2018 accident.

It was further noted that the defense did not directly impeach Dr. Volarich’s findings regarding the claimant’s closed head injury. Also, Dr. Randolph examined the claimant and found that the episodes of vertigo and dizziness were largely resolved, but Dr. Volarich found that claimant had significant residual complaints relating to vertigo and dizziness.

HOLDING: The ALJ determined that the evidence was persuasive that the 2018 work injury considered alone was sufficient to render the claimant unemployable in the open labor market. Due to the injuries sustained in the 2018 accident, the claimant had significant, ongoing and disabling symptoms that prevented him from returning to any work. The Judge noted that given the two contrasting perspectives, Dr. Volarich’s conclusions were more consistent with the other evidence. He noted that while the claimant certainly had many pre-existing disabling conditions, the claimant’s disabilities from the work injury from this occurrence were sufficient to render him permanently and totally disabled. Based on the weight of the evidence, the claimant was awarded permanent total disability benefits from the employer/insurer. Because the employer was found liable for the permanent and total disability, the claim against the Second Injury Fund was denied. The Commission affirmed the Award and decision of the ALJ.

Adams v. Treasurer of the State of Missouri – Custodian of Second Injury Fund, Case No. WD84818 (Mo. App. 2022)

FACTS: The material facts were undisputed. Claimant suffered three significant work-related injuries during his career.

In 1984, claimant tore ligaments, tendons, and nerves in his left hand which resulted in reconstructive surgery. He settled his claim for 32.5% of the left wrist or 56.875 weeks of disability.

In 2001, claimant fell off scaffolding while working. His doctor found 35% PPD of the right leg, 35% of the left leg, and 7.5% of the lumbar spine. The employer’s doctor provided a 5% PPD rating of the right leg, 3% of the left leg, 2% of the lumbar spine, or 5% of the body as a whole for all three disabilities.

The claimant settled his 2001 injury against the employer based on “approximate” disability of 15% of the body referable to bilateral knees and low back which was 60 weeks of disability. The Compromise Settlement does not provide a breakdown of weeks of disability attributed to the low back or each knee.

On September 17, 2015, claimant sustained his final work-related injury. His right hand was crushed and his right shoulder injured when his hand was pinned between a jack handle and the bottom of a trailer. Surgery was performed. Thereafter, claimant filed a workers’ compensation claim against his employer for PPD and a claim against the SIF for PTD.

The ALJ issued his final Award concluding that the claimant was PTD due to the primary injury together with his prior disabilities from the 1984 injury and the 2001 injury.

The SIF appealed the ALJ’s Award because the disabilities which resulted from the 2001 injury did not qualify under Section 287.220(3)(a). They noted that the 2001 injury resulted in disabilities to two specific body parts, the knees and the back, that do not separately meet the 50-week threshold.

The Commission reversed the ALJ’s Award finding the SIF had no liability. The claimant appealed.

HOLDING: The claimant appealed the Commission’s Final Award denying compensation from the SIF. Claimant claimed the Commission erred in failing to find the SIF liable for claimant’s combined disabilities from his work-related 2001 injury because together they met the 50-week threshold required by Section 287.220.3.

It was noted that the Commission found “as a factual matter, that pre-existing disability relating to employee’s (2001) work injury did not result in PPD of at least 50 weeks to either employee’s back or bilateral knees”. Also, that in 2001, the SIF entered into this Compromise Settlement does not also infer or result in an agreement that the disabilities meet the current statutory requirements of Section 287.220.3. Rather, the Court noted that they were bound by the Commission’s factual determination that the Compromise Settlement does not presently satisfy the statutory requirements of Section 287.220.3. It was noted that the settlement contract clearly states that “There are disputes between the parties” and “because of the dispute…the parties…enter into a compromise lump settlement…” Based upon “approximate disability”. In doing so, the Court noted the Compromise Settlement simply agreed to an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves, a function necessary to determine whether either qualifies as a pre-existing disability as defined by Section 287.220.3(2).

The Court further noted that both the claimant’s and Dissent’s use of pre-2005 Missouri caselaw recognizing the “body as a whole” approach in construing Section 287.190.3 is not persuasive. Their cited cases analyze the prior statutory framework that called for a liberal construction of the provisions of Chapter 287.

The Court noted that the claimant interpreted the prior decision in Parker to mean that all disabilities which are the direct result of a compensable injury or to be combined to determine if the 50-week threshold is met. However, the claimant’s interpretation was incorrect. It was noted that not only was it at odds with the current statutory framework calling for strict construction, but it was also contrary to the holding in Parker which required that each of the pre-existing disabilities must qualify on its own under Section 287.220.3(2)(a) to be considered.

Therefore, the Court concluded that the Commission’s findings were supported by substantial and competent evidence. The claimant failed to establish a qualifying pre-existing disability which, with his primary injury would entitle him to PTD benefits from the SIF pursuant to Section 287.220.3. Accordingly, the Commission’s decision was affirmed.

That a New or Second Injury Occurred

Danner v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant testified at a Hearing that on June 4, 2014, as she lifted a patient’s legs to place a wedge underneath them, she felt a pop and immediate pain in her low back. The following day, she sought treatment.

On July 17, 2014, the claimant claimed that she injured her low back again while lifting a patient from the floor to a mattress on the floor. At a Hearing, the claimant testified she felt worsened pain in the “same spot” and that she “aggravated the back” injury from June 4, 2014. She finished her shift and then returned to Dr. Boyett with whom she was treating for her June 4, 2014 injury.

The ALJ found the claimant to be a credible witness as her demeanor was clear and direct and her testimony was consistent with the exhibits in evidence. The Judge also found that claimant is unemployable on the open labor market and was thus permanently and totally disabled.

However, the Judge noted that Dr. Hopkins stated that based on the short period of time between her two injuries with the injuries in the same portion of her body, the doctor believed that her low back injury on July 17, 2014 was a continuation of her first injury just over one month prior. This was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the July 17, 2014 incident was an aggravation or continuation of the June 4, 2014 injury.

Considering all of the medical evidence, along with claimant’s testimony, the Judge found that based upon the overwhelming majority of the expert medical evidence and claimant’s credible testimony, that the claimant failed to meet her burden that she suffered a new and distinct work injury on July 17, 2014. The Court found that the June 4, 2014 work injury in isolation was the prevailing factor causing claimant’s medical condition and disability.

Since the Judge found that the claimant did not suffer a new or distinct work injury on July 17, 2014 but that the claimant’s injuries and disability were the result of the work injury on June 4, 2014, the Court concluded that there was no work injury subsequent to June 4, 2014 that combined with a pre-existing disability to result in the claimant’s permanent total disability. Therefore, the Judge determined that the claimant had failed to meet her burden that the SIF is liable to her for PTD benefits.

HOLDING: The Commission affirmed the Award and decision of the ALJ. The Commission noted the Supreme Court of Missouri’s recent decision in March v. Treasurer of the State of Missouri-Custodian of Second Injury Fund (2022). In that case, the Commission denied a post 2014 SIF claim for PTD where the SIF produced no evidence and the Commission did not discredit the claimant’s experts. The Court held the fact that the SIF did not offer contradicting evidence and did not cross-examine the claimant did not establish a “presumptively valid claim”.

The Commission emphasized that to establish a claim, the claimant must not only meet the burden of production but also the burden of persuasion. In this matter, the Commission found that the claimant’s evidence, though not controverted, is insufficient to support her claim. Therefore the decision and Award of the ALJ was affirmed.

Hood v. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer

as Custodian of the Second Injury Fund, Case No. ED110331 (Mo. App. 2022)

FACTS: On August 20, 2012, claimant was injured when he was working as a carpenter on property owned by the Vandalia Area Historical Society. He was hired by Michael Menech. At the first Hearing, the parties stipulated that neither Vandalia nor Menech carried workers’ compensation insurance. The Judge issued his initial decision finding that Menech was the claimant’s employer, the claimant had incurred $51,183.42 in past medical expenses due to the work-related injury, and the Second Injury Fund was required to reimburse the claimant for past medical expenses and pay future medical benefits pursuant to Section 287.220.

On appeal, the Commission issued a Temporary Award ordering the SIF to pay only $23,226.27

in past medical expenses and to provide claimant with future medical care necessary to cure and

relieve the effects of the injury. The Commission noted that the Award was only temporary or

partial until a final Award was made.

The claimant also filed a civil action against Vandalia and later amended his Petition to add Michael Menech and additional co-employees as Defendants. Subsequently, the claimant settled his civil suit against all Defendants for $53,000.00. With respect to claimant’s medical bills, the settlement agreement stated that all medical bills must be paid by the claimant from the settlement amount of $53,000.00.

On December 9, 2020, the parties appeared for a final Hearing before the Judge on the claimant’s workers’ compensation claim. The Judge found that, under the Election of Remedies Doctrine, the claimant was not entitled to workers’ compensation benefits from Menech, Vandalia, or the SIF. Further, the Judge ordered claimant to reimburse the SIF for the $23,226.67 it paid to claimant pursuant to the Temporary Award.

On Appeal, the Commission affirmed the ALJ’s decision stating that the Election of Remedies Doctrine applies and it barred the claimant from recovering the payment of his medical bills by the SIF due to his settlement of the civil suit.

HOLDING: The Court of Appeals affirmed the Commission's decision denying claimant’s workers’ compensation benefits and ordering him to reimburse the SIF $23,226.27.

The Court noted the general statement of the law in Brookman v. Henry Transportation that if an employer is not insured and does not qualify as a self-insurer, an employee who is injured in the course of employment can elect to file a workers’ compensation claim or can bring suit against the employer in Circuit Court, but not to both.

In this matter, the Court noted, that although claimant’s civil action included additional parties as co-defendants and its workers’ compensation claim included the SIF, because Menech was party to both the workers’ compensation claim and the civil action, the Election of Remedies Doctrine governs. The claimant’s civil action and settlement with Menech barred the claimant from receiving benefits under the workers’ compensation statute under the Election of Remedies Doctrine. The claimant elected his remedy when he accepted the $53,000.00 settlement payment in his civil action against Menech and Vandalia.

Brooks v. William J. Laurie and Crown Center Farms, Inc., Case No. WD85031 (Mo. App.

2022)

FACTS: The claimant suffered an injury while he was employed as a superintendent for Little Dixie Construction while cutting down trees at Big Buck Resort. He was injured when a tree was cut by Defendant Laurie and fell down on him. Laurie was a shareholder and member of Big Buck Resort. Laurie also co-owned Crown Center Farms which employed Tim Cullen to assist with maintaining and caring for Crown Center Farms and various properties owned by Laurie including helping to manage Laurie’s hunting area at Big Buck.

On the day of the incident, Laurie contacted the claimant and requested his assistance at Big Buck. On that day, the people working at Big Buck included the claimant, Laurie, Cullen, and two additional laborers. Following the incident, the claimant filed a workers’ compensation claim against Little Dixie Construction for the injuries sustained while working at Big Buck. The claimant also filed a civil suit against Laurie, Crown Center Farms, and Big Buck.

The Court dismissed the lawsuit based on a Summary Judgment as it found Crown Center Farms was a statutory employer of claimant, so as to trigger the exclusive remedy provision of the workers’ compensation law. It also found Laurie was an employee of Crown Center Farms so as to shield Laurie from liability under the workers’ compensation law. The claimant appealed.

HOLDING: The Appellate Court reversed the trial Court’s judgment and reinstated the lawsuit. The Court stated that pursuant to statute for a person to be a statutory employer, the work done under the contract on the premises must be “an operation of the usual business which he there carries on…”. It noted that in this case there was a genuine issue of material fact regarding whether the claimant was injured while doing work in the usual course of Crown Center Farms’ business in order to qualify as a statutory employee. Specifically, the cutting of trees at Big Buck was rarely performed and Big Buck usually employed a professional logger to clear the property.

The Court did not find that the claimant was performing work that was within the usual business of Crown Center Farms. Also, Laurie was not entitled to the protection of the workers’ compensation law under immunity as an employee of Crown Center Farms as Crown Center Farms was not the claimant’s statutory employer.