Case Law Updates 2007 Simon & Hudson, P.C.

Subject Matter JurisdictionTop

State ex rel. Jeffrey Wayne Patton v. Honorable Jack Grate, Circuit Judge, Division 17, 16th Judicial Circuit, Case No. WD67622 (Mo. App. W.D. 2007).

FACT: James Scherzer filed a personal injury law suit against Jeffrey Patton, his supervisor at Cardinal Brands. Scherzer alleged that Patton had given him a brief description of how to operate the book-trimming machine, but did not tell Scherzer that he would have to turn off the machine before dislodging clogs with his hands. Patton stated that he felt it was common sense to turn off a machine with three sharp blades before putting your hands into it, and that Scherzer had seen another employee turn off the machine before clearing a clog.

Patton filed a motion to dismiss for lack of subject matter jurisdiction, alleging proper jurisdiction lay with the Labor and Industrial Relations Commission as this was a workers’ compensation matter. The motion was denied. Patton then requested the Court of Appeals order the trial judge to stop the case from going forward by filing for a writ of prohibition. The Court of Appeals entered a temporary writ of prohibition, until they were able to hear the case.

HOLDING: Scherzer failed to show that Patton committed an “affirmative negligent act,” and, therefore, did not show “something more.” Accordingly, the Labor and Industrial Relations Commission has jurisdiction, and the writ of prohibition was made absolute.

Crissy Simpson v. Tim Thomure, Case No. 06-2396 (8th Cir. 2007).

FACTS: Crissy Simpson severely injured her hand at work while operating a power press machine that was controlled with a foot pedal. Simpson alleged that her supervisor, Tim Thomure, was negligent in setting up the machine to work with the foot pedal when it had an alternative set-up that allowed the operator to hit two palm buttons. Simpson alleged that the use of the foot pedal set up was negligent because an operator could not get their hand caught in the machine were it set up to use the palm buttons. Simpson further alleged that Thomure “knew the machine should not have operated with a foot pedal.”

The case was originally filed in state court but was removed to federal court by the manufacturer. The manufacturer argued that Thomure was fraudulently joined to the lawsuit by Simpson to avoid federal jurisdiction, because both Simpson and Thomure are citizens of the same state. The District Court dismissed Simpson’s case against Thomure for failure to state a claim upon which relief could be granted. Simpson appealed.

HOLDING: Thomure is immune from suit because Simpson did not show that Thomure directed Simpson “to engage in conditions that a reasonable person would recognize as hazardous beyond the usual requirements for the job.” Therefore, Simpson did not show “something more,” and her allegations were not sufficient to defeat Thomure’s immunity as Simpson’s supervisor under Missouri’s workers’ compensation law.

Jurisdiction of Commission Top

James Windberry, deceased, Barbara Windberry, Jacob Windberry, Hannah Windberry, John Windberry, Heather Windberry, and James Windberry, Jr. v. Treasurer of Missouri, as Custodian of the Second Injury Fund, Case No. ED89770 (Mo. App. E.D. 2007).

And

John Cox, deceased, and Betty Cox v. Treasurer of Missouri, as Custodian of the Second Injury Fund, Case No. ED89751 (Mo. App. E.D. 2007).

FACTS: In Windberry, James Windberry was awarded permanent and total disability benefits against the Second Injury Fund as of January 7, 1998. James Windberry passed away on February 16, 2006 and payment of the permanent and total disability benefits ceased. On January 1, 2007, in Schoemehl v. Treasurer of the State of Missouri, the Missouri Supreme Court ruled that permanent and total disability benefits were to be paid to a claimant’s dependents after that claimant’s death. (See our January 2007 - March 2007 Quarterly). The Windberry’s then filed a “motion to substitute parties” with the Commission based on Schoemehl, and requested the permanent and total disability payments resume. The Commission determined it had no statutory authority to review the permanent and total disability award because it lacked jurisdiction.

In Cox, John Cox was awarded permanent and total disability benefits against the Second Injury Fund after a hearing on July 11, 2003. Mr. Cox passed away on February 25, 2006. The Second Injury Fund, not immediately aware of his passing, continued to pay benefits until notified of Mr. Cox’s death. In March 2006 the Division sent a letter to the claimant’s counsel requesting Betty Cox, Mr. Cox’s wife, reimburse the Treasurer for the permanent and total disability benefits paid to the wife after the death of Mr. Cox, implying the treasurer was no longer liable for paying those benefits. In April 2006, the wife reimbursed the Treasurer as requested, and her counsel simultaneously sent a letter to the Division stating that the wife disagreed with the Treasurer’s position that it was no longer liable for permanent and total disability benefits. Counsel sent another letter to the Division specifically requesting the permanent and total disability benefits be reinstated, which was forwarded to the Commission. The Commission requested the Treasurer respond. The Treasurer did so, asserting the claimant’s death terminated their responsibility for payment of permanent and total disability benefits and that the Commission no longer had jurisdiction over the claim. The Commission then ruled that they had no statutory authority to “further delineate the [final] award or expound on its meaning.”

Both Windberry and Cox appealed these decisions to the Court of Appeals,

HOLDING: In both cases, the Court of Appeals noted that, were they to rule on these cases, they would affirm the Commission, noting the Commission no longer had jurisdiction over the claims according to the workers’ compensation statute. However, in light of the general interest and importance of the issues concerning the application of Schoemehl to the continuation of permanent and total disability benefits to dependents, these cases were transferred to the Supreme Court.

Failure to Comply with Court RulesTop

Donald McGill v. The Boeing Company, 235 S.W.3d 575 (Mo. App. E.D. 2007).

FACTS: The claimant filed an appeal from the Commission decision pro se. The claimant’s initial brief to the appellate court was handwritten and did not substantially comply with the Rule 84.04 or 84.06. The appellate court issued an order, sua sponte, describing in detail the deficiencies in the claimant’s brief, and notifying the claimant that failure to amend his brief to comply would result in dismissal. The claimant filed an amended brief, which was now typewritten in accordance with Rule 84.06, but still did not comply in form or substance with Rule 84.04. The employer then filed a motion to strike the claimant’s amended brief or, in the alternative, dismiss the appeal.

The Court of Appeals noted that pro se appellants are held to the same standards as attorneys, must comply with the Supreme Court’s rules of procedure, and they do not receive preferential treatment.

HOLDING: Appeal dismissed for failure to comply with court rules.

Paul Gruenert v. Green Park Nursing Home, Case No. ED89792 (Mo. App. E.D. 2007).

FACTS: The claimant alleged he suffered a back injury at work. The ALJ determined that the claimant did not meet his burden with respect to causation and was therefore entitled to no compensation. The Commission affirmed the ALJ’s decision, and the claimant appealed.

The claimant failed to comply with Rule 84.04 by failing to state the grounds for appellate jurisdiction, providing no legal reason to support his point relied on, and citing no legal authority for any proposition stated in his brief. The Court of Appeals noted that “failure to comply with the rules of appellate procedure constitute grounds for dismissal of an appeal.”

HOLDING: Because the claimant’s brief failed to comply with the mandatory requirements of Rule 84.04, the claimant failed to preserve anything for appellate review. Therefore, the appeal was dismissed.

Queen Wilkey v. Ozark Care Center Partners, L.L.C., 236 S.W.3d 101 (Mo. App. S.D. 2007).

FACTS: An ALJ found the claimant permanently and totally disabled as a result of the last injury alone. The employer appealed to the Commission, alleging the ALJ’s award was against the credible weight of the evidence in finding the claimant was permanently and totally disabled and in finding that the last injury alone was the cause of the permanent and total disability. The claimant filed a motion to dismiss the employer’s appeal for failure to comply with 80 CSR 20-3.030(3)(a), which states, in part, “It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and substantial evidence.” The Commission entered an order granting the motion to dismiss. The employer appealed, alleging that the “reasons” it gave in its application for review were that the two findings, “permanent and total disability” and “permanent and total disability as a result of the last injury alone”, were erroneous.
The Court of Appeals stated that the employer’s “reasons” were nothing more than statements that the decisions of the ALJ on two issues were not supported by competent and substantial evidence, which is expressly forbidden by 8 CSR 20-3.030(3)(a). Additionally, the employer’s “reasons” failed to specifically identify why the ALJ’s findings and conclusions were not properly supported by the record that was before the judge.

HOLDING: The Commission had the authority and power to dismiss the employer’s application for review because the “reasons” given in the application for review did not comply with 8 CSR 20-3.030(3)(a). The Commission’s decision is affirmed.

Charles Rothschild, Jr. v. Roloff Trucking, Karst Construction, B.A.M. Construction Co., a Subsidiary of McBride & Son, Integrity Installations, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. ED89364 (Mo. App. E.D. 2007).

FACTS: The claimant appealed to the Court of Appeals from a final award of the Commission. The claimant’s appellate brief failed to comply with Rule 84.04(c) (brief must contain a fair and concise statement of facts) and 84.04(d)(2) (sets forth the requirements for a point relied on). The Court of Appeals noted that the requirements of 84.04(d) are mandatory, because the purpose of the points relied on is to notify the opposing party of the “precise matters that must be contended with and to inform the court of the issues presented for review.”

The Court of Appeals noted that each of the claimant’s ten points failed to state the legal reason for his claim of reversible error and failed to explain why, in the context of his case, those legal reasons supported his claim for reversible error.

HOLDING: Because the claimant’s brief failed to substantially comply with 84.04(d), his brief preserved nothing for the Court of Appeals to review and was inadequate to invoke the Court of Appeal’s jurisdiction. The claimant’s appeal was dismissed.

Appellate Court Jurisdiction of Temporary AwardsTop

Mark Alcorn v. McAninch Corp. and Zurich American Insurance, 236 S.W.3d 111 (Mo. Ct. App. S.D. 2007).

FACTS: The claimant suffered a back injury at work. The employer and insurer initially provided medical treatment, but refused to provide recommended epidural steroid injections. The claimant then continued to receive medical treatment on his own. A hardship hearing was conducted, and a temporary award was issued, finding the claimant suffered a compensable injury, that the employer and insurer had paid $8,757.38 in necessary medical aid and that no medical bills were outstanding. Additionally, the employer and insurer were ordered to pay an additional 56 and 6/7 weeks of temporary total disability, totaling $38,429.38, in excess of the $3,379.50 that the employer had already paid in temporary total disability. The Commission affirmed the findings of the ALJ.

The employer and insurer appealed, arguing that the ALJ’s award was not based on competent and substantial evidence and that the award was in error because competent, substantial and uncontradicted evidence showed light duty had been offered to the claimant. The claimant then brought a motion to dismiss for lack of jurisdiction, arguing that the Commission’s award was temporary or partial, and as such, cannot be appealed to the Court of Appeals.

The Court of Appeals noted that past case law shows they have dismissed the appeal of a temporary or partial award in two situations. When the Commission left an issue open for determination and a decision on that issue was necessary to resolve the controversy between the parties, the case was dismissed. A case was also dismissed when the appellant purports to disclaim all liability but a review of the factual circumstances indicates that the injury has been stipulated to or the employer has taken responsibility for the injury by directing or controlling the medical treatment or has compensated the employee for missed days at work. The Court of Appeals has addressed the merits of a temporary or partial award in two situations. These situations occur if the appeal presents a threshold issue that must necessarily be decided before any issue of liability is ever reached or when the appellant contends that the threshold evidentiary burden of proof as to a work-related injury has not been met.

HOLDING: The employer and insurer did not dispute all liability, because they had directed and paid for medical treatment and paid temporary total disability. Therefore, the Court of Appeals does not have jurisdiction to review the appeal on its merits. The appeal was dismissed.

Credibility of ExpertsTop

Kim Hulsey v. Hawthorne Restaurants, Inc. and Argonaut Great Central Insurance Co., Case No. ED89880 (Mo. App. E.D. 2007).

FACTS: On December 1, 2000 the claimant was hanging Christmas decorations at work. While doing so she was standing on a chair, fell off the chair and hurt her right side. She continued working for an hour or so before going home. Around Christmas of 2000 the claimant requested treatment from her employer and her request was denied. The claimant then treated on her own with a multitude of doctors, undergoing MRIs of the spine and pelvis. In February 2002 the claimant was evaluated by Dr. Cohen who determined she was not a surgical candidate. The employer and insurer sent the claimant to Dr. Lange in June 2003 who concluded the claimant suffered a right sacroiliac joint injury as a consequence of December 1, 2000 fall but stated the claimant was at MMI.

The claimant then began treating with Dr. Raskas , and after he performed additional diagnostic studies, performed a discectomy and anterior interbody fusion at L5-S1 and L4-5. Following the fusion the claimant suffered a DVT in the left iliac vein and in the left common femoral artery. She was put on anticoaguolants and was further treated for her veinous condition by placement of a filter and stent in the left common iliac vein.

Dr. Cohen evaluated the claimant again in October 2004 and opined that the fusion surgery and resultant DVT in the left leg were caused by the claimant’s December 1, 2000 work injury. The employer and insurer sent the claimant back to Dr. Lange in June 2005 at which time he noted that the claimant’s pain diagram following her surgery was the same as her pain diagram after surgery. He further noted that the claimant had a small disc herniation at L5-S1 centrally and extending to the left, which was the asymptomatic side. He noted that the herniation was posterior in the canal, and would not have been treated with the fusion surgery undergone by the claimant because that surgery took an anterior approach, and such a herniation would require a posterior approach.

After a hearing, the ALJ held that the December 1, 2000 work injury was not a substantial factor in causing the need for the claimant’s fusion surgery. The Commission affirmed. On appeal, the claimant alleged the Commission’s award was not supported by substantial and competent evidence.

The Court of Appeals noted that the Commission is free to believe whatever expert it chooses as long as each opinion is based on substantial and competent evidence, and the appellate court is not to disrupt that, even if the competing expert is worthy of belief.

HOLDING: The Commission’s award is supported by substantial and competent evidence, and it is not against the overwhelming weight of the evidence. The Commission’s decision is affirmed.

Jeannette Jones v. Washington University and Treasurer of Missouri, as Custodian of the Second Injury Fund, Case No. ED89644 (Mo. App. E.D. 2007).

FACTS: This case has been previously discussed in our October 2006 - December 2006 Quarterly Update, as well as in our April 2007 - June 2007 Quarterly Update under Commission Trends.

In this opinion the claimant was appealing the most recent Commission decision. The Commission awarded expenses for treatment of adjustment disorder, choosing to believe Dr. Stilling’s testimony over three other doctors. Dr. Stillings determined the claimant did not suffer from PTSD. Further he determined the claimant was permanently and totally disabled, but it was not due to her work related injury. Rather, he determined she was permanently and totally disabled due to her pre-existing major depressive disorder, which was progressive in nature. He further noted that, prior to the work related injury, the claimant’s major depressive disorder was not a hindrance or obstacle to employment. Three other doctor’s diagnosed the claimant with PTSD as a result of her work related injury, and determined that she was permanently and totally disabled.

The claimant appealed, alleging that the Commission erred in finding her injury was adjustment disorder and not PTSD. She also argued that the Commission erred in finding she was not permanently and totally disabled as a result of the primary injury or, in the alternative, as a result of the primary injury in combination with her pre-existing disabilities.

The Commission is free to believe whatever expert it chooses, so long as their opinions are based upon substantial and competent evidence. The Court of Appeals notes that they will not disrupt the Commission’s decision on this point.

With respect to permanent and total disability, the Court of Appeals noted that the it was true that all of the experts agreed the claimant was permanently and totally disabled. However, the Commission, as previously discussed, was free to believe Dr. Stilling’s opinion that the claimant’s pre-existing condition was the reason for her permanent and total disability.

In order for the Second Injury Fund to be liable for permanent and total disability, it must be shown that the prior injury or condition was a hindrance to the person’s employability prior to the primary injury. The Second Injury Fund is not liable for the progression of pre-existing conditions. The Court of Appeals found that there was sufficient evidence to determine that the claimant’s pre-existing major depressive disorder was not a hindrance to her employment prior to the work related injury.

HOLDING: The Commission’s decision was not against the overwhelming weight of the evidence and is affirmed.

RetaliationTop

Anthony Johns v. Centric Group, Case No. 06CC3188 (St. Louis County Circuit Court 2007).

FACTS: Anthony Johns reported four work injuries in six months. Each time he reported an injury, Centric Group sent Johns for treatment and drug testing. Centric Group claimed the doctors they sent Johns to indicated he was able to work without restrictions. In February 2004 Johns began leaving work early or missing work, claiming he couldn’t work because of work related injuries. Although the supervisors testified that they had no reason to question Johns statements, he was still required to obtain a doctor’s note to excuse him from work. Despite being warned about the need for a doctor’s note, such notes were not always provided by Johns. Centric was able to show that when a doctor’s note was provided, Johns was given time off and it did not count against him under the company’s attendance policy. Johns was eventually terminated after ten consecutive days of absence without a doctor’s note.

Johns argued that he was discharged because he filed multiple workers’ compensation claims against Centric, and that Centric’s unauthorized absence defense was contrived. Johns testified that he was repeatedly assured his job would be safe so long as he called in at the beginning of each shift and informed his supervisor that he would be at work that day. It was undisputed that Johns did this. Johns also alleged that the vice president of Centric Group asked him to, “Put yourself in our shoes. You went out and got a lawyer.” The vice president denied making this comment.

HOLDING: After a three-day trial, the jury deliberated for two hours before returning a 10-2 verdict in favor of Centric Group. It was determined that Centric Group terminated Johns for his unauthorized absences, in accordance with their policy, and not in retaliation for filing a workers’ compensation claim.

Law of Case DoctrineTop

Charles Kuykendall v. Gates Corp. d/b/a Gates Rubber Co., 237 S.W.3d 249 (Mo. App. S.D. 2007).

FACTS: The employer appealed a final decision of the Commission issued February 15, 2007, granting a disability award to the claimant. That case is Kuykendall I. (See our October 2006 - December 2006 Quarterly Update.) This is the second appeal arising from the proceeding before an ALJ on December 10, 2004. This case is Kuykendall II.

The Court of Appeals noted that, in Kuykendall I, they had ordered the matter remanded to the Commission with instructions to enter a new award recognizing a positive percentage of disability resulting from the claimant’s myofascial pain in the shoulders at an amount to be determined by the Commission. In the February 15, 2007 award, the Commission stated, “We accept Dr. Eaton’s opinion as to the extent of disability employee suffered as a result of work-related bilateral myofascial pain related to his shoulders. Accordingly, we award permanent partial disability of 15% of the body as a whole referable to the myofascial pain.

In Kuykendall II, the claimant alleges that the Commission erred in awarding 15% PPD of the BAW referable to myofascial pain because the award was not supported by the evidence and because the Commission’s findings of fact are against the overwhelming weight of the evidence.

The law of the case doctrine applies when there are successive adjudications arising out of the same set of facts and issues. It provides that a previous holding in a case constitutes the law of the case and precludes re-litigation of the issue on remand and subsequent appeal. The Court of Appeals went on to note that, in Kuykendall I, they specifically determined that the claimant suffered a positive percentage, some amount over zero, of disability, due to the myofascial pain in his shoulders.

The Court of Appeals noted that claimant was asking them to modify the percentage of PPD to a positive percentage at the level of the right shoulder only, therefore asking the Court of Appeals to find zero percent disability in the left shoulder.

HOLDING: The law of the case doctrine clearly does not allow this kind of relief. In Kuykendall I, the Court of Appeals clearly required an award for the claimant’s shoulders. Because the claimant is disclaiming any injury in the left shoulder in this appeal, the law of case doctrine controls and prevents review of the claimant’s claims. The decision of the Commission is affirmed.

Permanent and Total Disability Against the EmployerTop

Mihalevich Concrete Construction v. Jimmie Davidson and Treasurer of Missouri, as Custodian of the Second Injury Fund, Case No. WD67676 (Mo. App. W.D. 2007).

FACTS: The claimant suffered several back injuries at work. The first injury occurred on October 12, 2001 when the claimant was bent over nailing forms and felt a pain in his back. An MRI showed disc herniations at L3-4, L4-5 and L5-S1. The claimant underwent a series of epidural steroid injections, and was returned to work full duty on November 6, 2001.

On June 23, 2003 the claimant was getting out of a company truck when he slipped and fell, re-injuring his lower back. He was diagnosed with a back strain and given prescription medications. On June 25, 2003, the claimant was using a board to help direct the flow of concrete when he once again injured his back. The doctor proscribed the Duragesic patch for the claimant, for pain, to which the claimant suffered a severe allergic reaction. The claimant once again underwent a series of epidural steroid injections. Eventually, Dr. Trecha performed an anterior discectomy and fusion with instrumentation at L5-S1.

Following the surgery, on February 23, 2004, the claimant told Dr. Trecha that he was feeling a little worse in his right leg with a little numbness and twitching, but no real back pain, after falling on ice three weeks before. In April 2004, the claimant reported he was walking two miles a day, and x-rays in May 2004 showed a solid fusion. The claimant later underwent an FCE, that showed he could work in the medium demand level.

The claimant has not worked since June 25, 2003. He testified that he did the best he could at the FCE, but could not get out of bed for a day and a half after the evaluation. He further testified that he was in constant pain every day, activity made his pain worse, and he often got tingling and shooting pain in his buttocks and down his right leg.

After a hearing, the ALJ found the claimant was entitled to 5% of the BAW with respect to the October 12, 2001 injury. For this injury, the claim against the Second Injury fund was denied.

The ALJ ruled the claimant was permanently and totally disabled as a result of the June 24, 2003 injury, and that injury alone was the cause of the claimant’s permanent and total disability. The ALJ noted that the claimant spent 45 minutes of his almost three hour testimony lying on the floor, and the ALJ did not find the claimant’s actions to be feigned or exaggerated. The ALJ determined that the Second Injury Fund had no liability for the permanent and total disability because the claimant had fully recovered after his October 12, 2001 and had returned to work. He further noted that the claimant did not have to return to a doctor due to his back until after the June 23, 2003 injury. Finally, the ALJ found that the claimant was entitled to future medical benefits because there was a reasonable probability that the claimant would need continuing prescription pain medications for his pain and inflammation. The Commission affirmed the award of the ALJ.

On appeal, the employer and insurer alleged that no medical expert or vocational expert testified that the claimant was permanently and totally disabled as a result of the last injury alone, and that the award for future medical treatment is erroneous because it is not supported by substantial and competent evidence in that the expert’s opinions were influenced by a subsequent injury and deterioration.

When determining liability for permanent and total disability, the degree of liability from the last injury alone must first be determined. If the last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and the employer and insurer are responsible for all compensation.

The Court of Appeals noted that the ALJ made his decision regarding permanent and total disability based upon the testimony of Dr. Lichtenfeld and Mr. Lalk, a vocational expert. The ALJ specifically found these experts credible. Further, the Court of Appeals noted that the ALJ also based his decision partly on the claimant’s testimony and behavior at trial, which the ALJ also found credible. The Court of Appeals stated that it was perfectly acceptable for the ALJ to observe the claimant in order to conclude that his testimony was credible, and Commission was free to adopt the ALJ’s conclusions.

Further, the Court of Appeals noted there was little to no development on the record regarding the claimant’s subsequent injury. Because none of the experts made much of the subsequent injury, the Court of Appeals determined that the Commission could have reasonably assumed it was not a significant aggravation of the claimant’s back problems.

With respect to the award for future medical, once again the Court of Appeals noted that the ALJ had found Dr. Lichtenfeld credible, and Dr. Lichtenfeld’s testimony supported the ALJ’s finding that the claimant needed further treatment in that he would require pain medication to relieve his back pain.

HOLDING: The Commission’s award was supported by substantial and competent evidence and is affirmed.

Commission TrendsTop

Over the last three months, the Commission has ruled on 55 cases and reversed or modified only eight of those cases. Of those, only two were changed regarding liability against the employer and insurer.

In Charles W. Bock, deceased and Alice Bock, dependent v. Broadway Ford Truck Sales, Inc., Reliance Insurance Co. c/o Illinois Insurance Guarantee Fund, and Treasurer of Missouri , as Custodian of the Second Injury Fund, Inj. No. 98-057574, the Commission determined that, in addition to the compensation awarded by the ALJ, the employer and insurer were also responsible for $112,871.25 in medical benefits and additional temporary total disability benefits in the amount of $53,236.64 for the period of time from July 16, 1998 through July 25, 2007.

The Commission modified the ALJ’s award in Christopher Hultz v. C & R Market and Hawkeye Security Insurance, Inj. No. 06-081063. The Commission determined that the award should not have been a final award, but rather a temporary or partial award, because it was agreed by the parties that the matter was to be taken up for a temporary hearing. The Commission specifically noted that the employer and insurer did not request a final award.

Case Law Update - July 2007 - September 2007

Appellate Procedure Top

Robinson v. Alliance Data Systems, 228 S.W.3d 86 (Mo.App. E.D. 2007).

FACTS: The Administrative Law Judge in this case denied the claimant’s claim for compensation. Claimant then filed an application for review with the Commission. The employer responded by filing a motion to dismiss the application for review and argued that the claimant failed to state specific reasons that the ALJ’s decision was not properly supported as required by 8 CSR 20-3.030(3)(A) (2000). The motion to dismiss was granted and the claimant appealed on the sole point that employer’s motion to dismiss was filed beyond the ten-day limit for filing an answer.

HOLDING: The Court of Appeals affirmed the Commission and noted that the claimant did not cite authority to support her contention that the Commission cannot grant a motion to dismiss an application for review unless the employer files the motion to dismiss within the time frame for a permitted but not mandatory answer. Additionally, the claimant did not present this issue of timeliness to the Commission when she opposed the employer’s motion to dismiss. Issues not presented to the Commission cannot be raised on appeal.

NoticeTop

Pursifull v. Braun Plastering & Drywall, Case No. WD66881 (Mo.App. W.D. 2007).

FACTS: The claimant was employed as a carpenter on a job by job basis by Braun Plastering & Drywall (Braun) between May 2003 and September 2003. The claimant’s first accident occurred sometime around September 1, 2003. (Accident 1). The claimant did not report Accident 1 to Braun because his symptoms improved. He did not miss any work, but he did continue to have dull muscle tightness in his low back. Subsequently, around September 23, 2003, the claimant lifted wall material and experienced a sharp pain in his back with pain shooting down his left leg. (Accident 2). His symptoms improved and he again did not report Accident 2 and did not miss any work. The claimant then stopped working for Braun and began working for another company as a foreman. His back pain was slowly progressing.

On October 11, 2003 the claimant went to the emergency room for back pain and the hospital noted the injury was apparently work related. He followed up with his personal physician and by the end of October 2003, he was admitted to the hospital due to severe back pain. During his hospitalization, he began to “connect the dots” and realized that he must have been injured in the two accidents while working for Braun. While hospitalized, the claimant contacted a co-worker at Braun and reported Accident 1 after the statutory notice period had lapsed. He did not mention Accident 2 at that time nor anytime thereafter. On October 31, 2003, the claimant filed a claim for Accident 1. In November 2003, the claimant was diagnosed with a herniated disc and surgery was recommended. On June 8, 2005, the case was tried on the issues of TTD and past and future medical expenses. On the day of the hearing, but prior to the presentation of evidence, the claimant verbally amended his claim to include two matters, one for Accident 1 and one for Accident 2. The ALJ heard evidence on both claims even though the claimant did not file a second formal claim.

The claimant testified to his version of both accidents and his disability. The claimant’s witness, Dr. Trecha connected medical causation to the claimant’s work related accident but he did not state nor was he asked which accident caused the claimant’s injuries or what percentage of permanent partial disability arose from each. A representative from Braun testified that the claimant did not timely notify them about Accident 1 and never gave notice of Accident 2. The ALJ opined that even if the claimant could overcome his failure to timely notify Braun about Accident 1, he provided no notice of Accident 2. Since the claimant failed to establish which accident caused the need for treatment and lost time, the ALJ denied both claims and the claimant appealed to the Commission. The claimant was ordered to file a formal claim for Accident 2 in accordance with his verbal amendment at the hearing. The Commission affirmed and stated the claimant had failed to meet his burden on notice and medical causation. The claimant appealed to the Court of Appeals and argued that he showed good cause and lack of prejudice for his failure to provide timely notice of Accident 1 and that “the evidence adduced as to Accident 1 should also overcome the lack of notice for Accident 2.”

HOLDING: The Court of Appeals found that the two accidents presented two separate evidentiary burdens and the notice question for each accident was factually distinct. The Court held that the claimant failed to provide any notice as to Accident 2 and failed to overcome the resulting presumption of prejudice. Accident 2 was not compensable. However, the ALJ did not determine whether Accident 1 was compensable or not compensable. Since notice was given for Accident 1, albeit untimely, the ALJ failed to determine if the claimant overcame his burden of untimely notice by showing good cause and lack of prejudice to the employer. The Court further held that if Accident 1 is compensable, the claimant should be given the opportunity to show TTD and medical expenses that flow solely from Accident 1. However, as the record reflects that the claimant worked between Accident 1 and Accident 2 he should not be awarded TTD as a result of Accident 1. The case was affirmed as to the non-compensability of Accident 2 and was reversed and remanded for the limited purpose of deciding whether Accident 1 was compensable, and if so, the past and future medical expense solely as a consequence of Accident 1.

Permanent Total DisabilityTop

APAC Kansas Inc. v. Smith and Treasurer of the State of Missouri-Custodian of the Second Injury Fund, 227 S.W.3d 1 (Mo.App. W.D. 2007).

FACTS: The claimant was a construction worker at APAC Kansas Inc. (APAC) and her job duties included driving a truck, putting up signs, shoveling asphalt and dirt, and directing traffic. The claimant was injured in 2002 on the job when a disgruntled driver attacked her. Her right knee, left shoulder, and head were the body parts involved initially. However, in the months that followed, the claimant complained of pain in her lower back. The claimant also had several pre-existing work injuries. She had a right knee injury in 1985 that was settled for 43.75% permanent partial disability. She had a twice operated right shoulder injury in 1990 which she settled for 17.5% BAW. The shoulder injury also affected her ability to work at APAC in that she could not load 50 pound barrels.
The claimant was awarded permanent total disability as a result of her last injury alone. Employer appealed and the Commission affirmed the ALJ. Employer then appealed the Commission’s decision to the Court of Appeals and argued that the permanent total disability should be against the Second Injury Fund due to a combination of her prior and last injuries.

HOLDING: The Court of Appeals affirmed and held that the presence of a pre-existing injury that is an obstacle or hindrance to employment does not automatically trigger fund involvement. In fact, it is irrelevant until after disability is assigned to the last injury alone. With regard to the last injury alone, the claimant suffered headaches that require her to lay down for 10 to 40 minutes during the day and occur several times per week. There was no evidence that these headaches pre-existed her 2002 work injury and there was testimony that her need to lay down that frequently would not be acceptable in a work environment. Therefore, the Court found that the last injury alone rendered the claimant permanently and totally disabled leaving no need to discuss or analyze her prior injuries.

ABB Power T & D Company v. Kempker and Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD67465 and WD67480 (Mo.App. W.D. 2007).

FACTS: On February 24, 2001, the claimant was running a high voltage machine as part of his job duties. He pulled on a copper strap when he felt a sharp pain in his back and a loss of control of his legs. The claimant received authorized treatment with Dr. Abernathie who operated on the claimant’s back in October 2001. The surgery helped the claimant at first but he had increased complaints during physical therapy. Six months later he had another back surgery which increased his symptoms even more. The claimant saw his personal doctor after his release who prescribed pain medication. Dr. Volarich also opined that the claimant may need medication and other medical care in the future related to his back injury. The claimant was unable to return to work and filed his claim including the second injury fund due to various prior injuries including a 1978 right knee injury, carpal tunnel surgery in 1999, a 2000 pelvis and low back injury that resulted in hernia surgery, and back strains from the mid-1990's. The case was tried on the issues of nature and extent of permanent disability, liability against the Second Injury Fund and employer’s liability for future medical expenses.

During the trial the claimant testified that after each of his prior injuries, he was able to return to full duty quickly with no restrictions. He testified that his 2000 back injury was resolved before his February 24, 2001 injury. He further testified to extensive current complaints since his last surgery and maintained that he is unable to work or perform his previous daily activities and hobbies due to constant burning, stabbing, and radiating pain in his back and leg. The medical and vocational reports from Dr. Volarich and Ms. Gonzalez respectively, stated that he could not work as a result of a combination of all his injuries. However, on cross examination, Ms. Gonzalez admitted that the claimant could not work even when considering his back problems alone.

The ALJ found the claimant permanently and totally disabled as a result of the last injury alone and denied the request for future medical expenses. Both the claimant and the employer appealed to the Commission who affirmed. The employer appealed the Commission’s decision to the Court of Appeals and argued that permanent total disability liability should fall on the Second Injury Fund. The claimant appealed the Commission’s decision that he was not entitled to future medical expenses.

HOLDING: On the issue of permanent total disability, the Court of Appeals affirmed the Commission. The Court reasoned that the evidence supports that the last injury alone caused the claimant’s permanent total disability. The claimant’s detailed testimony regarding his limitations and pain was supported by the medical records and the testimony of both experts.

On the issue of the claimant’s entitlement to future medical treatment, the Court reversed the Commission and found that the claimant met his burden to prove that there is a reasonable probability that future medical treatment is necessary for him and that it flows from the accident. The Court disagreed with the Commission that the claimant failed to meet this burden because he did not say why he was taking each medication he listed. The Commission also erred when it stated that no physician described or explained that the medication he should be taking is to cure and relieve the effects of his injury. The Court found the detailed testimony of the claimant and Dr. Volarich sufficient to show that the claimant will need pain medication and other medical care and reversed the portion of the award denying future medical benefits for pain control.

COMMISSION TRENDSTop

Commission Rulings from July 2007 through September 2007

In the last three months, the Commission has ruled on fifty-seven cases and reversed or modified only eleven of those cases. Of those, five were changed in favor of the employer and insurer, two were in favor of the employee, three ruled against the second injury fund and one was modified to recognize a settlement. Of the forty-six cases that were affirmed, three involved the new law after August 28, 2005, as did one of the reversals.

In Norman v. Phelps County Regional Medical Center, Liberty Mutual Insurance Co., Inj. No. 06-001823, the claimant dislocated her left knee when she lifted her left leg while standing and crossed it over her right knee in order to place a plastic surgical bootie over her shoe. The ALJ ruled that the claimant’s left knee dislocation did not occur as a result of an accident under the new law definition because she did not slip, trip, fall, lose her balance, was not pushed, nor was she startled. Further, the ALJ stated that “raising one’s knee to place something on one’s foot – such as a sock, shoe or bootie– is not an unusual strain or traumatic event.” The Commission reversed the ALJ and opined that the claimant did meet the definition of accident under the new law and applied the dictionary definitions of “trauma” which include 1. “an injury (as a wound) to living tissue caused by an extrinsic agent” and 2. “an agent, force or mechanism that causes trauma.” The Commission found that when the claimant raised and crossed her leg, heard a “snap, crackle and pop” and felt immediate pain which caused her to collapse, it was a traumatic event clearly identifiable by time and place of occurrence and produced objective symptoms of an injury caused by a specific event during a single work shift. The Commission further opined that affixing a surgical bootie over her left foot was a hazard or risk to her employment because she was complying with the employer’s rule in order to clean in the operating room. Her accident therefore arose out of and was in the course and scope of her employment. This case is on appeal in the Western District Court of Appeals.

In Betzold v. The Renaissance Guild, LLC/Uninsured and Treasurer of Missouri as Custodian of Second Injury Fund, Inj. No. 06-020192, the ALJ ruled that the claimant sustained an accident but that the accident did not arise out of and was not within the course and scope of his employment. The ALJ relied upon and found more credible, testimony from employer’s witnesses that the claimant was not authorized to be at the work site where he was injured. He instead was told to go to the work site by the employer’s customer, not the employer. The customer was not the claimant’s supervisor, nor did he pay the claimant, nor was he supposed to assign work to the claimant. Therefore the claimant went outside the course and scope of his employment when he went to the work site on his date of injury. The Commission affirmed the ALJ but a dissenting opinion was issued. The dissent believed the claimant was a more credible witness and believed that the ALJ’s interpretation of “arising out of” and “course and scope of employment discussions” relied on definitions and constructions of phrases before August 28, 2005.

In Griffin v. Gates Corporation d/b/a Gates Rubber, Self-Insured c/o Gallagher Bassett Services, Inj. No. 05-098155, the Commission affirmed the ALJ who awarded permanent partial disability of 25% of the shoulder for an operated right shoulder injury where no tears were found intra-operatively. The post-operative diagnosis was “right shoulder pain with subacromial impingement with minimal synovitis in the glenohumeral joint.” The evidence included respective ratings of 3% and 35% of each party. The ALJ relied upon the medical records, ratings, the claimant’s testimony, and the ALJ’s own observations of the claimant’s limitations during the hearing. In Froehlich v. Dupuis Redi-Mix Concrete, Builders Association Self-Insurer’s Fund, Inj. No. 05-120748, the Commission affirmed the ALJ who ruled that the work accident was the prevailing factor in the cause of the claimant’s hip pain and need for a total hip replacement, not his pre-existing degenerative disc disease in his low back.

In Lamb v. St. Louis Public Schools’ Board of Education City of St. Louis c/o Cannon Cochran Management Services, Inj. No. 03-062615, the Commission reversed the ALJ and found that the claimant’s hearing loss was not causally connected to his employment. The Commission reasoned that the employer’s expert, Dr. McKinney, was more credible because he demonstrated better knowledge of the claimant’s work history, noise exposure, the progression of the claimant’s hearing loss even after his employment ended, and the type of hearing loss that the claimant had which the doctor opined was idiopathic.

In Nolan v. DeGussa Admixtures Inc., Ace American Insurance Company, Inj. No. 05-083237, the Commission modified the ALJ’s award and subtracted a 15% penalty from all benefits awarded including, burial expenses, past medical expenses, past TTD, and past and future death benefits. The penalty stemmed from the claimant’s positive drug test after his work related motor vehicle accident. The employer presented medical evidence which supported that the methamphetamines in the claimant’s system were actively affecting the claimant’s brain and nervous system at the time of accident. However, the Commission did not think this rose to be the proximate cause of the accident since there were witnesses who testified that the claimant was acting normal and did not appear impaired before his accident. The Commission also did not award fees and costs to the claimant because it believed that the positive drug test results gave the employer good cause to dispute compensability.

Case Law Update - April 2007 - June 2007

Arthur Liberty v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 218 S.W.3d 7 (Mo. App. W.D. 2007).

FACTS: The claimant was employed by Owens Corning in Kansas City, Kansas when he suffered a “series” of injuries to his back. The primary claim was settled against the employer and approved by a Missouri Administrative Law Judge (ALJ). The Second Injury Fund was not a party to that settlement.

The claimant then alleged permanent and total disability against the Second Injury Fund, and the matter went to a hearing. During the hearing, jurisdiction was an issue. The claimant alleged that jurisdiction was proper in Missouri because the last act necessary to complete the contract was performed in Missouri. The Second Injury Fund contested this statement.

The claimant testified that he completed a job application at the Owens Corning plant in Kansas City, Kansas in January 1968. He then completed a group interview at the plant. The claimant testified that he received a call from Owens Corning at his brother’s house in Kansas City, Missouri, informing him that he was hired. His hiring was contingent upon undergoing a chest x-ray, which was performed in Kansas City, Kansas. The claimant then began working at Owens Corning. In April 1968 the claimant stopped coming in to work and went back to Nebraska. He did not resign and was not terminated. In December 1968 the claimant had a one-on-one interview at the Owens Corning plant in Kansas City, Kansas, and was later contacted at another brother’s house in Kansas City, Missouri, where he was again offered a job.

The ALJ found Missouri did not have jurisdiction, specifically noting that the claimant’s testimony was inconsistent regarding where he was staying in January 1968, and that the claimant presented no corroborating evidence. The Commission affirmed the ALJ’s decision.

HOLDING: The Court of Appeals noted that the claimant had both the burden of production and persuasion. They stated that the Commission was not compelled to believe the claimant’s testimony, and was free to reject all or part of that testimony, even if there was no contradictory or impeaching evidence. The court also noted that the stipulation with respect to the claimant’s settlement with the employer regarding the primary injury may be admissible into evidence, however, they found that it was not persuasive evidence as the Second Injury Fund was not a party to that settlement. The Court of Appeals affirmed the Commission’s decision with respect to jurisdiction, and vacated the portion of the Commission decision that addressed the merits of the claimant’s claim as a legal nullity.

State ex rel. MW Builders, Inc v. The Honorable Sandra C. Midkiff, Case No. SC87773 (Mo. 2007).

FACTS: In September 2003 the claimant was working for Northwest Masonry Inc., a subcontractor hired by MW Builders (MWB), performing masonry work on a construction project at Northwest Missouri State University (NWMS). The claimant was injured when the scaffolding he was on collapsed. The claimant filed a personal injury lawsuit against MWB, his employer, the scaffolding supplier and two of his co-employees. MWB moved to dismiss, alleging the trial court lacked subject matter jurisdiction because the claimant was a statutory employee of MWB under the Workers’ Compensation Statute. The trial court denied MWB’s motion to dismiss, and the Court of Appeals denied MWB’s request for a Writ of Prohibition. MWB refiled the petition with the Missouri Supreme Court, and was granted a preliminary writ.

The Supreme Court noted that, in order for MWB to be a statutory employer, three requirements must be met. First, the work must be performed pursuant to contract. Second, the injury must occur on or about the premises of the alleged statutory employer. Thirdly, the work must be in the usual course of the alleged statutory employer’s business.

The Supreme Court noted that there was no dispute about requirements one or three. However, the court did note that the second aspect of this test, which requires that the injury must occur on or about the alleged statutory employer’s premises, does not mean that the injury must occur at the principal place of business. Rather, the injury must occur at a premises where the alleged statutory employer has exclusive control, which means that the statutory employer has such control of the premises that the general public does not have an equal right to use the premises along with the statutory employer.

HOLDING: The Supreme Court determined that MWB was clearly an independent contractor operating under a standard commercial construction contract. As such, MWB was the claimant’s statutory employer, and was not subject to a personal injury action filed by the claimant by virtue of the Workers’ Compensation Law. The preliminary writ barring subject matter jurisdiction over the personal injury claim was made absolute.

State ex rel. Ford Motor Co. and F.X. Scott v. The Honorable W. Stephen Nixon, 219 S.W.3d 846 (Mo. App. W.D. 2007).

FACTS: Roy Dieticker worked at the Ford automotive plant in Claycomo for over thirty years, retiring in 1996. Five years later he was diagnosed with mesothelioma and died on October 7, 2001. Prior to his death, Mr. Dieticker filed a workers’ compensation claim, alleging his cancer was caused by exposure to asbestos in the workplace.

After his death, Mr. Dieticker’s wife filed a wrongful death action in circuit court against Ford, Mr. Scott, the industrial relations manager, and various companies that manufactured or sold asbestos. The allegations against Ford were that they intentionally concealed the danger of asbestos in the workplace. With respect to Mr. Scott, the Dieticker’s alleged that he knew of the asbestos hazard and failed to disclose the information to Mr. Dieticker.

Ford and Mr. Scott filed a motion to dismiss the workplace injury claims of the suit, for lack of subject matter jurisdiction. The circuit court granted a discovery stay on those claims pending a determination by the Commission as to whether Mr. Dieticker’s injuries resulted from a workplace accident or intentional conduct. Judge Nixon vacated the stay on April 21, 2006. Ford and Mr. Scott then filed a writ to prohibit the circuit court from exercising jurisdiction over the workplace injury claims, because the Commission had exclusive jurisdiction. The Court of Appeals granted a preliminary writ.

HOLDING: The Court of Appeals found that the Dieticker’s could not avoid the exclusive jurisdiction of the Workers’ Compensation Law by merely alleging Ford intentionally injured Mr. Dieticker by concealing the danger of asbestos in the workplace. The Court of Appeals stated that the circuit court lacked subject matter jurisdiction to consider whether Ford’s work related conduct was intentional or accidental. With respect to the allegations against Mr. Scott, the court noted that personal lawsuits against a co-employee are also preempted by the Workers’ Compensation Law unless the co-employee performed an affirmative negligent act outside the scope of the employer’s duty, which is the “something more” test. The court held that Mr. Scott’s actions did not constitute an affirmative negligent act. The preliminary writ was then made absolute.

Nancy Clayton v. Langco Tool & Plastics, Inc., and Fremont Insurance Co., and Missouri Insurance Guaranty Association, Case No. 28145 (Mo. App. S.D. 2007).

FACTS: The claimant alleged she injured her lower back while working at Langco Tool, and the employer and insurer contested the claim. The ALJ denied compensation, stating the claimant failed to meet her burden of proof regarding accident and medical causation. The claimant was not awarded any benefits. The Commission adopted the ALJ’s award, which noted that the claimant’s version of her alleged work accident was neither credible nor persuasive, and noted that the claimant’s testimony varied in many respects from numerous statements she had made to medical professionals over the course of six years.

On appeal, the claimant alleged that the Commission failed to give the proper weight to two evidentiary inconsistencies and that the Commission improperly relied upon “perceived inconsistencies in the claimant’s statements to physicians.” The claimant also appealed the finding that she did not show medical causation.

HOLDING: The Court of Appeals opined that the specific disbelief by the Commission of the claimant’s testimony implicitly supported the inapplicability of both evidentiary inferences. Therefore, the claimant was simply challenging the Commission’s credibility determination, which is not reviewable by the Court of Appeals. Because the Court of Appeals found the first issue dispositive, they stated that the issue of medical causation was moot, and made no specific findings. The decision of the Commission was affirmed.

David Roberts v. Missouri Highway and Transportation Commission, Case No. 27109 (Mo. App. S.D. 2007).

FACTS: On September 29, 1997, the claimant was driving a dump truck when, in order to avoid a tractor trailer that was blocking both lanes of traffic, he drove into a shallow ditch. The claimant received authorized treatment, and Dr. Crabtree, a neurosurgeon, performed a lumbosacral fusion on April 23, 1998. The claimant received additional authorized treatment from Dr. Woodward after his surgery. In December 1998 the claimant was returned to work full duty by Dr. Woodward with a rating of 15% PPD of the body as a whole.

Following his release, the claimant was able to work as a substitute worker at the stockyards, where he would move pigs, goats, and calves while on horseback. The claimant also participated in team penning, which was described as a very aggressive sport on horseback that requires the participants to “cut out” a specific number of cows from a heard in a minute and half. On October 1, 1999 the claimant was married in a ceremony on horseback, at the conclusion of which he was thrown from his horse. Observers noted the claimant appeared hurt, cringing, and limping.

On October 14, 1999 the claimant returned to Dr. Woodward, and an MRI showed typical post-surgery findings and nothing more. Dr. Woodward noted positive Waddell signs that suggested symptom magnification, but did adjust the rating, to 20% of the body as a whole, due to the claimant’s complaints. In March 2000 the claimant’s attorney sent the claimant to another neurosurgeon, Dr. Arnold, who reviewed the claimant’s prior diagnostic studies and stated that the claimant did not have a compressive lesion that required surgery. In May 2000 the claimant returned to Dr. Crabtree, who stated that the claimant’s fusion was stable.

From June 2000 through August 2000 the claimant helped his wife with her job by unloading cases of shoes, which weighed approximately 30 pounds, from a delivery trailer, loading about 50 cases onto his own trailer. He would also help set up display stands at various sites where the shoes were sold.

In September 2000 the claimant was evaluated by Dr. Coufal, a neurosurgeon. An MRI was performed that Dr. Coufal stated showed a moderate paracentral disc herniation at L5-S1. He diagnosed the claimant with failed back syndrome secondary to an inadequate neural decompression at the time of his first surgery, and on March 8, 2001 Dr. Coufal performed an L5 laminectomy and an L5-S1 discectomy. He opined that the September 29, 1997 motor vehicle accident caused the herniation.

The claimant saw Dr. Woodward for the last time in September 2003, who opined that the second surgery was neither necessary nor successful. Dr. Woodward also stated that the claimant’s horseback riding and lifting 30 pound cases of shoes, which were unrelated to his work for his employer, could have caused his lumbar disc herniation.

A hearing was held before an ALJ, who found that the September 29, 1997 accident only caused the claimant’s injuries and disabilities up to December 1998, and any claimed injuries or disabilities that purportedly occurred after that date were not caused by the accident. The ALJ specifically noted the factors that lead to that decision, including the claimant’s horseback riding, penning cattle, moving large items, and being thrown by a horse. The ALJ awarded the claimant 20% PPD. The Commission affirmed the ALJ’s decision. The claimant appealed.

The Court of Appeals stated that the claimant had the burden of proving “that his accident at work, independent of other factors, caused him to be permanently and totally disabled.” The court noted that the claimant must not only show causation between the accident and injury, but also that the disability resulted and the extent of such disability. Because the employer did not bear the burden of proof, the Court of Appeals stated the employer and insurer were entitled to show all possible causes for the claimant’s condition.

HOLDING: The Court of Appeals noted that Dr. Coufal’s opinion that the September 29, 1997 accident caused the claimant’s disc herniation was contradicted by the testimony of Drs. Crabtree, Woodard, and Arnold. They also noted that credibility determinations regarding both medical and lay witnesses lay with the Commission. The Court of Appeals affirmed the Commission’s final award.

FACTS: The claimant alleged a repetitive motion left foot injury in 2002, and amended her claim in 2005. After a hearing, the ALJ awarded compensation and future medical benefits in the form of orthotics. The Commission affirmed the ALJ’s award.

On appeal, the employer alleged that the Commission applied the wrong burden of proof. The Commission determined that the claimant’s work activities were the substantial factor in the cause of the claimant’s injuries, and the employer and insurer argued that they should have used the prevailing factor test, under the new law. The employer also argued that the claimant’s award of permanency and future medical was not supported by competent and substantial evidence because the claimant had a prior injury to her foot and had worn orthotics previously.

HOLDING: The Court of Appeals noted that the claimant initially filed her claim in 2002, well before the 2005 statutory changes. They found that the “prevailing factor” language was not to be applied retroactively because it is a substantive change, and the legislature did not specifically state that it was to be applied retroactively. With respect to permanency, the court found that the Commission’s decision to accept the testimony of the claimant’s expert was not against the overwhelming weight of the evidence. With respect to future medical, the Court of Appeals noted that a claimant does not need to produce conclusive evidence of the need for future medical treatment, but rather must show a reasonable probability that the treatment will be required due to the claimant’s work injury. The court opined that the claimant’s work injury was separate and distinct from her prior injury, and that she now required the use of orthotics as a direct result of her work injury. In light of the above, the Court of Appeals affirmed the Commission’s award.

Floyd Wilcut, dec., and Sharon Wilcut v. Innovative Warehousing, Case No. ED88247 (Mo. App. E.D. 2007).
FACTS: The decedent, a Jehova’s Witness, sustained severe injuries when driving a truck for the employer. He refused a blood transfusion because members of his faith consider it a great sin to accept a blood transfusion. The claimant subsequently died of his injuries. The employer paid for the decedent’s funeral, and paid death benefits to his wife, Sharon Wilcut, his dependent, for nearly two years. When the death benefits stopped, Mrs. Wilcut filed an action for death benefits.

After a hearing, an ALJ found that the decedent’s refusal of a blood transfusion was unreasonable. This was because the medical doctors testified that the decedent would have survive if he received the blood transfusion, and because an Elder in the decedent’s church stated that a Jehova’s Witness may seek forgiveness for sins. Thus, the ALJ found that the decedent’s dependents were not entitled to death benefits. The Commission adopted the ALJ’s findings of fact, and also found the decedent’s refusal of a blood transfusion unreasonable.

HOLDING: This was a case of first impression for the Court of Appeals. It was noted that the statute, at the time of the decedent’s injury, was to be liberally construed. The court also noted that there was no dispute that the decedent’s religious beliefs were sincere. The Court of Appeals found that the Commission failed to adequately accommodate the decedent’s religious beliefs in its decision. In light of the above, the court found the claimant’s refusal of a blood transfusion was not unreasonable, and death benefits were awarded to the decedent’s dependents.

Steven Dubinsky v. St. Louis Blues Hockey Club, Case No. ED88767 (Mo. App. E.D. 2007).

FACTS: The claimant was a professional hockey player under contract at the time of his injury. Pursuant to the claimant’s contract, after his injury the employer continued to pay the claimant his wages, which amounted to $241,442.83, as well as pay for his medical treatment. At a hearing, the ALJ awarded 10% of the body as a whole due to the claimant’s injuries, which amounted to $13,604.80. However, in light of section 287.270, which intentionally creates a credit for the employer for wages paid out to a professional athlete after their injury pursuant to their employment contract, the ALJ found the employer was entitled to a credit for the entire $13,604.80. The ALJ also found the claimant’s constitutional claim, that this credit violates the Due Process Clause of both the United States and Missouri Constitutions, to be without merit. The Commission affirmed the ALJ’s award.

On appeal, the claimant alleged that the Commission erred in finding that the employer was entitled to a credit for wages paid when the claimant continued to perform under his contract, and that the credit violated the claimant’s constitutional rights.

HOLDING: The Court of Appeals found that the statutory section pertaining to the credit with respect to professional athletes was clear and unambiguous. Thus, the employer was entitled to the credit. With respect to the claimant’s constitutional allegations, the court stated that the claimant’s claims were only colorable, not real or substantial, so they had jurisdiction to review the claim. Because the claimant only alleged an economic interest, the presumption of rationality could only be overcome by a clear showing of irrationality and arbitrariness. The Court of Appeals found that the legislature’s exclusion of professional athletes under contract had a rational basis, therefore, there was no denial of due process rights.

David Ullom v. George Carden Circus International, Inc., and Treasurer of the State of Missouri, as Custodian for the Second Injury Fund, Case No. 27971 (Mo. App. S.D. 2007).

FACTS: The claimant initially began working for George Carden in 1990 on a farm and was paid in cash. For 1992, 1994, 1996-2001, and 2003, the claimant received W-2s from the Circus. The claimant performed approximately 80% to 90% of his work at the farm, which included cutting, stacking, and loading wood; raking, mowing, and planting grass; grading roads and building fences; growing and cutting hay; operating heavy equipment; and caring for cows and buffalo. On May 30, 2003, the claimant injured his left hand operating a hay baler. It is unclear who paid for the claimant’s treatment, but it may have been Mr. Carden’s homeowners insurance. When the claimant came back to work part time in June 2003, the claimant was only paid out of Mr. Carden’s personal account, and not that of the Circus.

In late 2003, the claimant began experiencing bilateral carpal tunnel symptoms. Due to the worsening of his symptoms, the claimant quit working on March 20, 2004. In September 2005, Dr. Reith diagnosed the claimant with advanced carpal tunnel syndrome on the right and recommended x-rays of the claimant’s left hand to determine whether there was arthritis in the area of the claimant’s prior fracture.

The claimant filed claims on both hands, and the ALJ denied the claimant’s requests for a temporary award for medical treatment on both hands. In addition, the ALJ concluded that the claimant was “clearly an employee of the Circus when he injured his hand in 2003, but was not an employee of the Circus when he developed carpal tunnel syndrome in 2004.” The ALJ concluded that the claimant was engaged in farm labor at the time he developed carpal tunnel and therefore was not eligible for relief under the Workers’ Compensation statute due to the farm labor exemption of section 287.090.1(1). The Commission affirmed the ALJ’s decision.

The claimant appealed, contending he was a handyman, not a farm laborer, at the time of his injuries. The Court of Appeals noted that, in order to be considered a farm laborer, the claimant must be engaged in acts that are usually performed in the operation of a farm.

HOLDING: The Court of Appeals found that, when considering the “whole character” of the work the claimant performed at the farm, they could not say that the Commission incorrectly concluded the claimant was a farm laborer. In light of this, they held that the claimant was exempt from the Missouri Workers’ Compensation Statute.

Over the last three months, the Commission has ruled on forty-four cases and reversed or modified only eight of those cases. Of those, only four were changed regarding liability against the employer and insurer.

In Daniel Hindle v. Goldman Promotions, Lumbermen’s Casualty Co. and Treasurer of Missouri as Custodian of the Second Injury Fund, Inj. No. 02-084710, the Commission modified the TTD rate, from 120.03 per week to $121.24 per week. The Commission stated that, because the claimant was paid every two weeks, it was fair and reasonable to calculate his TTD rate using the previous fourteen weeks, rather than thirteen weeks They also increased the amount the claimant was to receive for reimbursement of unpaid medical expenses, from $9,186.42 to $15,325.45. The Commission stated that it was not necessary for the claimant to offer medical records into evidence for home care facilities, because they are not medical institutions, and there was sufficient showing of the need for the claimant’s transfer to such a facility.

The Commission also increased the claimant’s TTD rate in Jackie Lingerfelt v. Elite Logistics, Rsko, and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 01-053538, from $590.17 to $599.96, stating that one of the weeks used in the calculation of TTD should have been thrown out because the claimant began employment on a day other than the beginning of the calendar week.

Both Cheryl Jennings v. Station Casino St. Charles, Continental Casualty Co., and the Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 97-433205 and Jeanette Jones v. Washington University, Colleges and University Trust, and the Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 00-170529 were remanded by the Court of Appeals to the Commission for rulings consistent with their opinions.

In Jennings, the Commission was instructed to enter an award that found that the discogram, and its sequellae, were medically causally connected to the claimant’s September 16, 1997 work related injury. In light of this finding, the Commission awarded future medical care to the claimant. No additional TTD was awarded, but the Commission did find that the claimant was permanently and totally disabled as a result of her last injury alone, thus, that finding was against the employer and insurer.

The Court of Appeals ordered the Commission to apply section 287.120.1, the section that defines accident, in Jones. The ALJ and Commission had previously applied section 287.120.8, which pertains to a mental injury only claim, while this matter pertains to a physical injury resulting in a mental injury. After applying the correct section, the Commission reversed the ALJ’s award and found that the unwanted touching and subsequent mental injury did arise out of and in the course of the claimant’s employment. The Commission awarded 5% of the body as a whole and noted that this did not meet the threshold for Second Injury Fund liability. The claimant was not awarded TTD or future medical benefits, but was awarded $465.00 in unpaid medical expenses.

Barry, Inc. and Liberty Mutual Insurance Company v. Veronica Falk., Case No. WD67081 (Mo. App. W.D. 2007).

FACTS: The claimant was injured and died as a result of an accident on June 15, 1982, while working for the employer. The claimant’s widow filed a workers’ compensation claim as a result of his death. A hearing was held in 1984 and the ALJ entered an award of benefits to be paid to the claimant’s dependents. The ALJ cited the 1978 version of the death benefits statute, 287.240, rather than the version in effect at the time of the award, the 1980 version. The 1980 version contained a cap on damages that could be awarded that the 1978 version did not. Neither the employer nor the claimant complained of this citation to the incorrect statute. The case was appealed to the Commission who changed the wage calculation, but otherwise affirmed the award. Again, no party complained on appeal to the Commission that the wrong statute was referenced.

After appeal to the Commission, the employer began to pay death benefits of $174 per week to Mrs. Falk and her children. Payment continued until December 2003 when the employer notified Mrs. Falk that the final payment had been made based on their calculation of the cap on the death benefits award under the 1980 version of the statute.

The employer than asked the Commission to modify the award so that it referenced the correct version of the statute. The Commission stated it lacked jurisdiction to do so because the time for appeal of an award had expired. The employer appealed this decision and the Court of Appeals dismissed the appeal for lack of jurisdiction. Mrs. Falk also filed a motion in circuit court on different occasions for enforcement of the award.

The employer then filed a declaratory judgment action in civil court asking the court to declare the rights of parties under that award and hold that the 1980 version of the death benefits statute applied and that the employer had therefore, satisfied all obligations under the award. The trial court held in favor of Mrs. Falk and the employer appealed.

HOLDING: Although the wrong section of the statute was cited, the Court held that the declaratory judgment action constitutes an impermissible attack upon a final award. Appeal of a Commission award must be done within thirty days from the date of the final award to the appellate court. Where a judgment is attacked in other ways than by proceedings in the original action to have it vacated, reversed, or modified or by a proceeding in equity to prevent its enforcement, that is a “collateral attack.” In this case, the Court held that the employer lost the opportunity to correct the award when it failed to appeal the Commission’s decision.

FACTS: The claimant filed a workers’ compensation claim and a hearing was held on July 11, 2005. The ALJ held the record open until September 15, 2005 so that the claimant could undergo a rating evaluation. At the request of the employer, the final date for evidence was extended until October 14, 2005 so that the employer could submit responsive evidence. The ALJ issued her award on October 5, 2005 before the employer’s time to respond lapsed. The employer filed a motion to set aside this judgment, and rather than issuing a decision regarding this motion, the ALJ wrote an amended award on October 19, 2005 incorporating the submitted evidence.

The employer filed an application for review with the Commission on October 28, 2005. The Commission dismissed the application finding that it was filed more than 20 days after the award issued on October 5, 2005. The employer appealed this dismissal.

HOLDING: The Court held that although the filing of an application for review must be done within 20 days from the date of this award, the Commission ignored the amended award and acted in excess of its power by calculating the days from the original award rather than the amended award. The October 5, 2005 award was invalid because the hearing had not ended when the ALJ issued it and therefore, the later award was neither from a review of the case or from a reopening of a prior award. Therefore, the employer timely filed its application for review based on the date of the later award.

FACTS: The claimant sought compensation for carpal tunnel syndrome and was awarded benefits by the ALJ. The Commission reversed the decision of the ALJ, finding the employer’s witnesses to be more credible. The claimant appealed this decision claiming the Commission erred because there was “substantial, competent and credible evidence” that the condition was work related.

The Court can only modify, reverse, remand or set-aside the decision of the Commission if 1) the Commission acted without or in excess of its powers; 2) the award was procured by fraud; 3) the facts found by the Commission do not support the award; or 4) there was not sufficient competent evidence in the records to warrant the making of the award.

The claimant’s appeal stated that the Commission erred in not finding an occupational disease arising out of and in the course of employment because the claimant provided substantial, competent and credible evidence to provide a direct causal link between the condition and his work. This included testimony of witnesses, the claimant, and the treating physician.

HOLDING: The Court found that the claimant’s appeal basically claims his evidence makes a prima facie case. This presents no reviewable issue on appeal and the Court affirmed the Commission’s award.
C. Subject Matter Jurisdiction

David Harris v. Westin Management Company East and Jeremy Neu, Case No. ED88250 (Mo. App. E.D. 2007).

FACTS: The plaintiff was injured as a passenger in a car accident that occurred on his way to work when the car he was riding in was hit by a Westin Hotel van. At the time of the accident, the plaintiff was employed by Westin Hotel. The plaintiff filed suit against Westin and the driver of the van for injuries sustained from the accident. The trial court dismissed the plaintiff’s suit for lack of primary subject matter jurisdiction, finding that the question of whether his injury occurred in the course and scope of employment rests exclusively with the Commission.

The plaintiff appealed this decision stating the court cannot abrogate its duty to make the determination of its own jurisdiction absent a preponderance of the evidence showing that jurisdiction is lacking.

HOLDING: The Court held that for a trial court to act within its discretion to dismiss a case for lack of subject matter jurisdiction based on the exclusivity of workers’ compensation law, it must appear by the preponderance of the evidence that the court is without jurisdiction. The Court found that this was not the case, and there were no disputed issues of fact regarding the key elements of the case which would require it be sent to the Commission for determination. The plaintiff was on a public street at the time and not yet at work. Therefore, the Court held that the plaintiff was not at work when the accident occurred. The Court transferred the case to the Supreme Court for guidance regarding the extent of the trial court’s authority to determine its own cases where workers’ compensation exclusivity is alleged.

Clarence Krusen v. Maverick Transportation and Liberty Mutual Fire Insurance Co., Case No. 27338 (Mo. App. S.D. 2006).

FACTS: The claimant was employed as a truck driver for the employer. The employer’s business address is in Arkansas. On July 10, 2002, while in Michigan, the claimant injured himself when he fell from his truck. He sought benefits in Missouri arguing that his contract of employment was entered into in Missouri. The employer faxed the claimant a job application to his mother’s home in Missouri while he was staying there and a recruiter called him at his mother’s home to tell him he “got the job.” The claimant was then required to come to Arkansas for orientation and testing. After completion of the orientation, he was given an employment agreement which stated that the principle state of employment was Arkansas.

The employer presented evidence that recruiters do not have authority to hire employees and can only provide invitations to come to the orientation. The Commission concluded that the claimant’s contract of employment was executed in Arkansas and that the offer of employment was dependent on completing the orientation in Arkansas. Therefore, any benefits under Missouri law were denied.

The claimant appealed this decision arguing that the substantial and overwhelming weight of the evidence showed that the contract for employment was completed in Missouri when the claimant accepted an unconditional offer of employment from the employer’s agent over the telephone while the claimant was in Missouri.

HOLDING: The Court found that the place where a contract is made is considered to be the place where the offer is accepted or where the last act necessary to complete the contract is performed. In this case, although the claimant made arrangements for his employment over the phone in Missouri, he was required to complete tasks in Arkansas. Therefore, the last act necessary to complete the contract occurred in Arkansas and the Commission’s decision denying compensation was upheld.

Gary L. Adamson v. DTC Calhoun Trucking, Inc. and the Second Injury Fund, Case No. 27651 (Mo. App. S.D. 2007).

FACTS: The claimant drove a large truck hauling sand and injured his low back on February 17, 2003 while attempting to secure a tarp to his truck. He initially did not seek treatment because he assumed the pain in his lower back would subside. The claimant did not report any problems to Dr. Curry when he was referred there for a physical. He then noted back problems to his employer on March 14, 2003. The claimant sought treatment at the emergency room and was referred to Dr. Jordan who provided several epidural steroid injections and diagnosed a femoral hernia. The claimant was noted to have multiple degenerative changes in his low back and it was opined that he sustained a job related sprain injury overlying his degenerative changes. One doctor provided the opinion that the chances of the claimant returning to the same type of work were slim. Although the claimant noted multiple ongoing complaints, he did state he could do some yard work, household tasks, and deer hunt. The claimant’s experts noted that he needed work restrictions of lying down several hours per day and that he was permanently and totally disabled. Employer’s expert found that although the claimant had multiple ongoing complaints, there was not objective evidence for his restrictions. Additionally, surveillance did observe the claimant building a garden wall out of stones.

The claimant testified that he received weekly pay stubs and was paid 30% of what the truck grossed based on each trip he took from Springfield to Jefferson City. He testified he typically worked 60 hours per week. In the thirteen weeks prior to the injury, there were a number of days the claimant did not work. However, the claimant worked according to the employer’s needs.

In determining a claimant’s average weekly wage, section 287.250.4 states that if wages are fixed by the day, hour, or by the output of the employee, the wage is then calculated by dividing by thirteen the wages actually earned by the employee in the thirteen weeks immediately before the date of accident. If there is an absence of five regular or scheduled work days, that shall then be considered an absence of a calendar week. Further, under section 287.250.5, if wages can’t be fixed or ascertained, the wages of a similar employee may be used for purposes of calculation.

At a hearing, the ALJ awarded and the Commission affirmed permanent partial disability of 12.5% and found there was an underpayment of TTD in the amount of $39.40. This calculation was based on simply dividing the claimant’s weekly pay stubs for the last thirteen weeks before the injury by thirteen. No deduction was taken despite the fact the claimant did not work a number of days, because the employer’s needs were determined day by day and there was no predetermined work schedule.

The claimant appealed the decision of the Commission regarding the nature and extent of disability, as well as the calculation of the TTD rate. He alleged that the evidence showed he was permanently and totally disabled and that his wages should have been calculated using those of a similar employee because they could not be justly determined otherwise.

HOLDING: The Court held that the Commission found the claimant not to be credible regarding his testimony of his complaints and activities. The Court noted that findings on credibility of the claimant by the Commission cannot be substituted by the Court. Additionally, the Commission had competent and credible evidence to find the claimant was not permanently and totally disabled from the work accident. The Court also upheld the Commission’s determination of the claimant’s average weekly wage and TTD rate finding that the claimant’s wages were fixed by the output of the employee and were properly calculated. There was no need to look to the wages of similar employees.

Lindell Garrett v. Treasurer of the State of Missouri as Custodian for the Second Injury Fund, Case No. 27803 (Mo. App. S.D. 2007).

FACTS: The claimant hurt his right shoulder on October 1, 2002, his last day of employment with the employer. His injury occurred while gathering up his personal equipment after being fired. The claimant received a settlement of 22.5% of the right shoulder with the employer. Additionally, the claimant sought compensation from the Second Injury Fund alleging that his shoulder injury and pre-existing psychological conditions rendered him permanently and totally disabled.

With respect to his prior psychological conditions, the claimant, a Vietnam veteran, underwent evaluation for post-traumatic stress disorder at the suggestion of another veteran. The Claimant reported a history of nightmares, flashbacks and irritability. He was referred to Dr. Faitak after evaluation at the VA hospital. The claimant was diagnosed with mild to moderate post-traumatic stress disorder in January 2002 and was found to be worse at a subsequent evaluation after he was fired from the employer.

The claimant also underwent a disability evaluation by Dr. Paff and Wilbur Swearingin. Dr. Paff originally found that the claimant had a disability of 25% of the shoulder from the work injury. Based on reading Dr. Faitak’s deposition on the claimant’s post-traumatic stress disorder, Dr. Paff believed that the claimant’s condition had caused him a lot of disability and provided an opinion of 20% to 30% pre-existing disability from the mental condition. Mr. Swearingin found that the claimant’s psychological problems did hinder or were an obstacle to his employment before the October 2002 work injury.

The ALJ awarded the claimant permanent and total disability benefits based on the combination of his shoulder injury and pre-existing psychological condition. However, the Commission found that Mr. Swearingin’s opinions were not credible and were inconsistent with the claimant’s description of a successful work history. The Commission also found that Dr. Paff’s opinions regarding any pre-existing disability largely parroted Dr. Faitak’s opinions, especially since he never independently reviewed the claimant’s mental condition or discussed it with the claimant. Therefore, the Commission found that the claimant failed to prove his pre-existing conditions were a hindrance or obstacle to employment.

The claimant appealed this decision alleging that the Commission “capriciously disregarded” the ALJ’s findings and should have deferred to the ALJ regarding the testimony of Mr. Swearingin and Dr. Paff. The claimant also appealed the Commission’s finding that there was not pre-accident disability stating it was unsupported by competent and substantial evidence.

HOLDING: The Court found that although the Commission differed with the ALJ on the testimony of Dr. Paff and Mr. Swearingin, there was no abuse of discretion and that the Commission did not callously ignore or capriciously reject, or arbitrarily disregard the ALJ’s credibility determination. The Court also found that the Commission had competent and substantial evidence on which to base its decision, including the claimant’s own testimony of a successful past work history.

Ronald Kliethermes v. ABB Power T&D; Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD66700 (Mo. App. W.D. 2007).

FACTS: The claimant worked for the employer beginning in 1972 until November 2000 when he found it difficult to perform his duties after having received an electrical shock on the job. The claimant then filed a claim seeking workers’ compensation benefits from the electrical shock. Following the shock, he noted heart problem difficulties. He was placed on several medications to attempt to get his atrial fibrillation under control, was admitted to the hospital for heart and blood pressure problems, and was eventually placed on a pacemaker. The claimant could not work around electrical equipment due to the pacemaker, and continued to have episodes of atrial fibrillation, fatigue, and weakness. His doctors never cleared him to return to his employment.

Prior to the electrical shock, the claimant had been treating for heart ailments since he was 40 years old. His problems included intermittent atrial fibrillation, mild hypertension, and mitral valve prolapse. These conditions were controlled through medications under the care of a cardiologist. The claimant testified that he never had any limitations prior to the work accident and led an active life. The records did note he reported to his family physician one month prior to the shock with reports of being tired and having difficulty sleeping.

Evidence was presented that the work injury was not a substantial factor in causing the claimant’s heart problems. Evidence also showed that one doctor concluded that cause and effect would be difficult to prove even though the worsening of the claimant’s symptoms did seem to correlate with the shock. Another doctor opined that some electrical circuits were “fried” from the work injury resulting in his worsening heart condition.

The ALJ entered an award denying compensation to the claimant finding that he failed to meet his burden of proving a causal connection between the electrical shock incident and the increase and severity in his heart problems. The ALJ pointed out that diagnostic testing revealed no physical changes in the claimant’s heart. The Commission affirmed this decision.

The claimant appealed the Commission’s decision denying him workers’ compensation benefits alleging that their decision was against the overwhelming weight of the evidence. He contended there was substantial evidence to show a causal relationship between his disability and the work injury.

HOLDING: The Court found that there was no medical evidence documenting a physical, structural change in the pathology of the claimant’s heart as a result of the work injury. The Commission had evidence of a long history of atrial fibrillation and heart treatment prior to the work injury. The Court held that the Commission has the right to determine how much weight to give to inferences and determine whose opinion is most credible. Therefore, the Court held that the Commission’s decision, even though there was conflicting testimony, was supported by sufficient competent and substantial evidence.

Lana Martin v. Town and Country Supermarkets, Case No. 26689 (Mo. App. S.D. 2007).

FACTS: On January 20, 1997, the claimant was working at the deli at the employer’s grocery store. She injured her back as she was reaching up to get a box of donuts from a freezer. The claimant was initially believed to have a back fracture, however, it was then determined her back pain was caused by a congenital defect in her lower spine. No evidence of disc herniation was found on CT scan. The claimant received conservative treatment and was released from care on March 10, 1997. She later asked for additional treatment with a doctor but this was denied.

The claimant then sought further treatment on her own, and a February 10, 1997 CT scan revealed an L5-S1 disc rupture. Although later MRI testing did not reveal any abnormalities, an EMG study was positive for lumbar radiculopathy from root pressure in the right lower lumbar region indicative of a ruptured disc. Surgery was performed on July 10, 1997 and removal of a ruptured disc was performed. Due to ongoing complaints, she underwent a second surgery which noted another disc rupture in November 1997. She then had cerebrospinal fluid removed from her back. The claimant continued to note back pain, as well as some right leg pain. She was released from care in September 1999 and diagnosed with failed back syndrome. The doctor opined that all of her surgeries were due to her work injury and that she was unable to work due to her continuing symptoms.

The employer had the claimant examined by Dr. Wayne who found that the claimant did have failed lumbar syndrome and attributed all of the claimant’s disability to her surgeries. However, Dr. Wayne did not believe that the claimant should have undergone surgery because she had only a lumbar strain from the work injury and no surgical indications.

A hearing was held before the ALJ who found that the herniated discs were caused by the work injury, her unauthorized treatment was necessary, and that Dr. Wayne was not as credible as the other physicians. The claimant was found permanently and totally disabled from the work injury, but payment for her surgical expenses were denied on the ground that there was not evidence that the employer failed to provide treatment. The Commission affirmed the ALJ’s award, but did modify it to reimburse the claimant for her medical expenses. The employer appealed the finding of permanent and total disability and of reimbursement of medical expenses.

HOLDING: The Court held that the claimant’s unauthorized treatment was reasonable and necessary and although conflicting medical theories were presented, it was up to the Commission to weigh the evidence and assess the credibility of witnesses. The Court found there was substantial and competent evidence to find that the claimant’s surgical treatment was reasonable and necessary and that her permanent and total disability resulted from that treatment. Further, the Court found that the claimant had placed the employer on notice that she needed additional medical aid when she told the employer she wanted additional treatment after her release in March 1997. The employer refused to authorize this treatment, and the claimant was free to procure necessary treatment on her own and obtain an award against the employer for the reasonable costs. Therefore, the Commission’s decision was affirmed.

FACTS: The claimant became a full time employee of employer in October 1995 as a customer service representative for the “credit card money transfers,” “credit card validation,” and “agent sending money transfers” departments, which included typing duties. In 2000, she advised her employer of complaints in her upper extremity. Nerve conduction tests were negative and the claimant was cleared to work with no restrictions. In 2001, she moved to the “benefits quick cash” department which involved a little more intense typing. She reported worsening symptoms in 2002 and another nerve conduction test revealed very mild right carpal tunnel syndrome. Dr. Zahid opined that the claimant had a non-work related ganglion cyst and a history of very mild carpal tunnel syndrome. He advised the claimant to see her primary doctor for her non-work related condition and wear a wrist splint.
The claimant reported worsening symptoms, and the employer referred the claimant to Dr. Crandall who reported that the claimant’s job duties could not have caused her carpal tunnel syndrome. The claimant then sought treatment on her own. She was examined by Dr. Cohen who recommended surgery for her carpal tunnel and that it was work-related.

The employer obtained an ergonomic job study of the customer service department which found that the repetitions performed there would not place one at risk for cumulative trauma. No study was performed on the “benefits quick cash” area.

A hearing was held in May 2002. The ALJ denied compensation and the Commission affirmed the award finding that the claimant had many years with no symptoms despite unchanged exposure since beginning her employment in 1995. Additionally, the Commission cited the “three month rule” in discussion of their award. This rule limits employer liability for exposure to repetitive motion when the employee has been employed fewer than three months and evidence establishes that repetitive motion at a prior employer was the substantial contributing factor to the injury.

The claimant appealed the decision of the Commission alleging that substantial evidence showed that work was a substantial factor in the cause of her injury and the Commission erred in applying the “three month rule” as there was only one employer in the cause of action.

HOLDING: The Court found that the Commission made multiple findings of fact not supported by substantial evidence. The Commission relied on Dr. Zahid, finding that the doctor “determined the condition was not work-related.” However, his report provides no comment that the carpal tunnel syndrome is not work related. Additionally, the Commission’s findings that the claimant’s job duties remained essentially unchanged and that she had symptoms “suddenly” after five years is not supported by substantial evidence. The claimant reported symptoms three years after beginning employment and the ergonomic study never examined the duties of the “benefits quick cash” position. Commission’s use of this ergonomic study as more probative evidence was misplaced. Further, the Court held that the three month rule is not applicable to this case because the claimant was employed with the employer more than three months before filing her claim. Therefore, the Commission’s decision was not supported by substantial and competent evidence.

FACTS: The plaintiff was employed as a driver for the employer and his duties included driving and cleaning a concrete delivery truck. The defendant was the plaintiff’s supervisor. On April 7, 2000, the plaintiff sustained extensive injuries when the water pressure tank on the side of the truck exploded and threw him to the ground. One to two months earlier, the defendant had attempted to weld a salvage water pressure tank over an area that was corroded, rusted, and had developed a line of holes leaking pressurized water. After the defendant finished welding, he instructed the plaintiff to run the truck and tank “till it blows.”

The plaintiff sued the defendant in civil court alleging negligence that would bring the defendant outside of the protection of workers’ compensation. Although workers’ compensation is generally the exclusive remedy for injuries, Missouri courts do not extend immunity to a fellow employee’s affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe work place. “Something more” must be shown than a breach of general supervision and safety. To satisfy this test, there must be an affirmatively negligent act creating additional danger beyond that normally faced in the work environment.

HOLDING: The Court held that there was ample evidence that the defendant’s conduct constituted an affirmatively negligent act creating an additional danger beyond what the plaintiff normally faced in the work environment. All witnesses agreed that the defendant’s act of placing a weld over rust and corrosion created a dangerous condition. Further, advising the plaintiff to run the machine “till it blows” shows an intentional direction for the plaintiff to undertake an activity that the defendant knew was dangerous. Therefore, the judgement of the trial court that the defendant could be civilly liable fo the plaintiff’s injuries is affirmed.

Jose Angel Valdez Garza and Nidia Leal v. Valley Crest Landscape Maintenance , Inc., Rafael Garcia Moya, Javier Gonzalez and Brad Mason, Case No. ED88431 (Mo. App. E.D. 2007).

FACTS: The claimant was employed by Valley Crest Landscape as a landscaper (Nidia Leal is his wife). On March 15, 2005, the claimant was instructed to report to a home to provide landscaping services. Brad Mason, a supervisor directed which trees were to be trimmed. The claimant’s crew leader, Rafael Garcia Moya, instructed the claimant to climb a ladder and cut a specified limb while holding the ladder against the tree for the claimant. Moya also rigged a rope to the limb which was to be cut and a co-worker, Javier Gonzalez, held the rope while the claimant climbed the ladder. While on the ladder, the limb knocked the claimant off the ladder and he suffered a permanent spinal cord injury. A workers’ compensation claim was filed for which the claimant received $1,000,000.00.

Claimant and his wife filed negligence claims and a loss of consortium claim in circuit court. All of the defendants filed motions to dismiss based on lack of subject matter jurisdiction because workers’ compensation was the sole remedy available to the claimant. The trial court granted the motion against Valley Crest and denied the motion for the other defendants. On a motion to reconsider, all of the claims against all of the defendants were dismissed for lack of subject matter jurisdiction.

The claimant and his wife appealed this decision alleging that the facts were sufficient to show more than a mere failure to provide a safe work environment. They alleged that Moya failed to securely hold the ladder he placed there and failed to properly and carefully rig the rope to the branch. Additionally, they alleged that Gonzalez failed to place the rope over a higher branch than the claimant was cutting, failed to use reasonable care when holding the rope, and failed to properly and carefully rig the rope to prevent the branch from knocking the claimant.

Generally, co-employees enjoy the same protection under workers’ compensation as the employer, absent a showing of “something more” than a breach of general supervision and safety. What constitutes “something more” is determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside of the scope of employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes the fellow employee. Mere allegations of negligence are not the kind of purposeful, affirmatively dangerous conduct that Missouri courts recognize as moving a fellow employee outside the protection of workers’ compensation law.

HOLDING: The Court held that the actions of Moya, the supervisor, and Gonzalez may constitute negligence but do not meet any purposeful, affirmatively dangerous conduct and affirmed the trial court decision.

FACTS: The claimant was injured when a grate from the ceiling of a parking garage elevator fell on him while he was cleaning an elevator. The claimant worked for American Sweeping, Inc., which had contracted to clean for Highwoods Realty Limited Partnership. The claimant brought a common-law suit claiming negligence against Highwoods for his injuries. Highwoods argued that the court lacked jurisdiction over the subject matter and that the claimant’s exclusive remedy was under workers’ compensation law. The trial court granted the motion to dismiss for lack of jurisdiction and found that Highwoods was a statutory employer.

Statutory employment exists when: 1) the work is performed pursuant to a contract; 2) the injury occurs on or about the premises of the statutory employer; and 3) the work is in the usual course of business of the alleged statutory employer.

The claimant argued that the work he was doing was not in the usual course of business for Highwoods and therefore, they cannot be a statutory employer. “Usual business” is defined as those activities that are routinely done on a regular and frequent schedule contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time. The performance of these activities would require the hiring of permanent employees in the absence of the independent contractor work.

HOLDING: The Court found that the claimant’s employer entered into a contract with Highwoods for the general maintenance and cleaning of its facilities. This work was found to be in the usual course of Highwoods’ business because it was routinely done on a frequent schedule. Additionally, there was evidence that Highwoods would have had to hire permanent employees to perform the maintenance otherwise. Therefore, the Court upheld the dismissal of the trial court and found that Highwoods was a statutory employer.

Marian Knisley v. Charleswood Corporation and Treasurer of Missouri as Custodian of the Second Injury Fund, Case Number ED87605 (Mo. App. E.D. 2007).

FACTS: The claimant, an embosser, was required to set 50 to 70 pound brass dies in machines used to make impressions on wood furniture for the employer. On April 6, 1999, the claimant began to experience intense back pain after setting up two embossing machines. She eventually underwent an MRI which revealed a herniated disc as well as moderately severe degenerative disc disease. The claimant received pain management, and on November 7, 2001, she underwent a discectomy and fusion. During her back treatment, the claimant was diagnosed with breast cancer and received treatment for that condition. The claimant was released from care from the back injury in January 2003. Additionally, she received treatment on her own and was given work restrictions and additional pain management.

Rating examinations were performed regarding the claimant’s back injury which noted disability of 65% of the body from Dr. Musich and 25% of the body from Dr. Kennedy.

The claimant also has a history of prior conditions. This includes breast cancer, bilateral carpal tunnel syndrome, hypertension, complications from a breast reconstruction, slight hearing loss, and a nervous breakdown with anti-depressant treatment. She was evaluated by Dr. Musich who provided a rating of 35% of the body as a whole for all of her prior conditions together. He concluded that as a result of her back injury and prior disabilities that she was permanently and totally disabled.

The Commission affirmed the decision by the ALJ that the claimant sustained 45% disability to the body as a whole from the back injury. It also found that the claimant did not meet her burden of proof for Second Injury Fund benefits because a percentage of disability for each of her pre-existing disabilities was not provided and Dr. Musich did not distinguish between her pre-work injury and post-work injury breast cancer. The claimant appealed this decision.

HOLDING: The Court held that the record established the claimant’s pre-existing conditions were a hindrance or obstacle to her employment when combined with her work injury. Although there was substantial and competent evidence to find an award of 45% of the body for work injury, the Commission erred when it denied the claimant Second Injury Fund benefits. Section 287.200.1 does not require a claimant to distinguish each disability and assign a separate percentage for each pre-existing condition to prevail on a claim for permanent total disability. A claimant must establish only the extent, or percentage, of the permanent partial disability resulting from the last injury only, and prove that the combination of the last injury and the pre-existing injuries resulted in permanent total disability. Additionally, evidence revealed that Dr. Musich had provided testimony regarding the claimant’s cancer before the work injury. The Court held that the Commission’s denial of Second Injury Fund benefits was not warranted.

Fred Schoemehl, Deceased, Annette Schoemehl v. Treasurer of the State of Missouri of the Second Injury Fund, SC87750 (Mo. 2007).

FACTS: Ms. Schoemehl’s husband sustained a work-related knee injury in May 2001 while working for Cruiser County, Inc. He filed a workers’ compensation claim against the employer and the Second Injury Fund. The employer paid the husband approximately $20,000 in temporary total disability benefits and $9,400 in medical benefits. A month after benefits began, the claimant died from a cause unrelated to his work injury. At the time of the claimant’s death, Ms. Schoemehl was 62 years old and his sole dependent. She filed and later settled an amended claim for compensation against the employer and also had a claim for permanent and total disability against the Second Injury Fund.

A hearing was held regarding the Second Injury Fund claim and the ALJ determined that the claimant was permanently and totally disabled as a result of the work injury and pre-existing disabilities. The ALJ found the Second Injury Fund liable for permanent total disability benefits until the date of the claimant’s death for a total of $1,157.01. The ALJ denied payment of benefits for the rest of Ms. Schoemehl’s life following her husband’s death. The Commission affirmed this decision.

Ms. Schoemehl appealed arguing that the Commission erred in not concluding that, because she was the claimant’s dependent, she is considered an “employee” under workers’ compensation law and therefore entitled to permanent total disability benefits for the rest of her life.

HOLDING: The Court found that no Missouri cases have decided whether the right to compensation for the permanent total disability benefits of an injured employee, who dies from causes unrelated to the work-related injury, survives to the dependents of that injured employee. The Court looked to analysis of three statutes to reach their decision.

Section 287.230.2 provides that “where an employee is entitled to compensation under this chapter for an injury received and death ensues for any cause not resulting from the injury for which he was entitled to compensation, payments of the unpaid accrued compensation shall be paid, but payments of the unpaid unaccrued balance for the injury shall cease and all liability shall terminate unless there are surviving dependents at the time of death.” Second, section 287.200.1 defines the duration for permanent total disability benefits and states they shall be paid during the continuance of the disability for the lifetime of the employee. Finally, section 287.020.1 defines “employee.” It means every person in the service of any employer and when the employee is dead, also includes his dependents.

The Court’s analysis of these statutes found that Ms. Schoemehl was the claimant’s dependent at the time of his death and therefore, falls within the statutory definition of an employee. The Court also noted that Section 287.230.2 refers generally to “compensation” and makes no distinction between permanent total disability compensation or other benefits. Reading section 287.200.1 in its entirety, the Court found that the section can be given effect by recognizing the statute gives two separate, consistent clauses establishing the duration of PTD benefits. The Court noted that the continuance of disability extinguishes permanent total disability benefits in the event the injured worker recovers from the disability, and if the worker does not recover, the “employee” is entitled to compensation for his or her lifetime.

Therefore, the Court found that as the statute reads, Ms. Schoemehl is an employee “entitled” to compensation under section 287.230.2 and was entitled to step into the shoes of her husband and receive permanent total disability benefits for her lifetime.

The Court did note that the Second Injury Fund’s argument that surviving dependents are not entitled to permanent total disability benefits does indicate an ambiguity in the statute. Additionally, the dissenting opinion argued that Section 287.200.1 does not permit the widow to continue to receive her husbands disability payments because his disability ceased at his death, and the prerequisites to continued payments were then no longer satisfied.

Over the last three months, the Commission has ruled on 49 cases and reversed or modified only 8 of those. Of those cases, four were changed regarding liability against the employer and insurer.

In Steve Meadows v. Havens Erectors, Inc. and The Austin Company, Inj. No. 04-044941, the ALJ awarded fees and costs from Havens Erectors to the employee. The ALJ relied on Section 287.560 RSMO which states that if the division or the commission determines that any proceedings have been . . .defended without reasonable ground, it may assess the whole costs of the proceedings upon the party who so brought, prosecuted or defended them. The Commission found that the ALJ misapplied this section. Although the ALJ concluded that Havens Erectors did not defend the claim because they failed to appear at the hearing, costs may only be assessed if a claim is defended without reasonable ground. Failure to defend a claim does not authorize an award of costs. Therefore, the award of costs to the employee was reversed.

The ALJ denied benefits in Richard Johnston v. Hussmann Corporation, Inj. No.01-153936. The Commission reversed that decision finding the employer was the last to expose the employee to the hazard of the occupational disease of bilateral carpal tunnel syndrome.

The Commission reversed the decision of the ALJ in Stephen Butler v. St. Peters Cemetery Association, Inc., Inj No. 04-145390, and found that the claimant’s left carpal tunnel syndrome was work related. Although the ALJ found that the claimant did not meet his burden of proof regarding contraction of an occupational disease, the Commission concluded that claimant’s exposure as a gardener at his employment along with expert testimony established a causal link that it was related to his employment. Therefore, the Commission reversed the portion of the award regarding the carpal tunnel syndrome and awarded future medical benefits and any necessary TTD.

In Phillip Hiatt v. J.B. Hunt Transport, Inc., Inj. No. 00-072366, the Commission affirmed the ALJ’s finding doubling penalties to the employer under section 287.510 for failure to comply with a temporary award. However, the Commission did modify the award to adjust the calculation used by the ALJ for the amount of the penalty and increased the amount the employer owed.