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
Jurisdiction
Top
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.
Subject Matter JurisdictionTop
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.
AccidentTop
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.
CausationTop
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.
Burden of ProofTop
Linda Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo. App. E.D. 2007).
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.
Unreasonable Refusal of Medical
TreatmentTop
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.
Professional Athlete CreditTop
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.
Farm Labor ExemptionTop
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.
COMMISSION TRENDS
Commission Rulings From April
2007 through June 2007Top
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.
Case
Law Update - January 2007 - March 2007
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.
James Calcara v. PPG Industries, Case No. WD66954 (Mo. App. W.D. 2007).
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.
Issue Not on AppealTop
Victor Ruben v. Autozone, Inc., Case No. 28037 (Mo. App. S.D. 2007).
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.
Employment Contract FormationTop
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.
Calculation of Average Weekly
Wage and TTD BenefitsTop
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.
Medical CausationTop
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.
Traci Townser v. First Data Corp.,
Case No. ED87619 (Mo. App. E.D. 2007).
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.
NegligenceTop
Eric D. Burns v. Lynn M. Smith, Case No. SC87789 (Mo. 2007).
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.
Statutory EmployeeTop
Joshua Brown v. Kone, Inc., et al., Case No. WD67130 (Mo. App. W.D. 2007).
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.
Second Injury FundTop
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.
Commission TrendsTop
Commission Rulings from January 2007 through March 2007
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.
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