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Case Law Updates
Missouri Workers' Compensation

Simon Law Group, P.C. has established this page to inform clients and colleagues of recent, pertinent case law. This site is updated quarterly. Complete quarterly case law updates are available in Adobe Acrobat format (*.pdf) by clicking on the link next to each update. (Acrobat Reader required).
CASE LAW UPDATES Archives ( 2012, 2011, 2010, 2009, 2008, 2007)

CASE LAW UPDATES 2008

 

October 2008 - December 2008

MISSOURI
Jurisdiction to Appeal Temporary or Partial Awards
Jurisdiction of the Commission
Arising out of and in the Court of Employment
Future Medical Treatment
Employee must Submit to a Vocational Examination
Commission Trends

 

July 2008 - September 2008

MISSOURI
Exclusive Jurisdiction
Jurisdiction to Appeal Temporary or Partial Awards
Jurisdiction of the Commission
Causation
Accident
Past Medical Expenses
Employer/Employee Relationship
Permanent and Total Disability Benefits
Failure to Carry Workers' Compensation Insurance
Workers Compensation Fraud Conviction of Claimant
Commission Trends:
Missouri Workers' Compensation Statistics


April 2008 - June 2008

MISSOURI
Arising out of Unemployment
Commission Trends
Credibility of Witnesses
Idiopathic Injuries

Jurisdiction of Commission

January 2008 - March 2008

MISSOURI
Application of Drug Penalty
Award of Future Medical Benefits
Calculation of Average Weekly Wage
Commission Trends
Credibility of Witnesses
Extent of Claimant’s Disability
Jurisdiction of Commission

Jurisdiction to Appeal Temporary or Partial Awards Top

Brian Cooper v. Hartwig Transit Incorporated, Case No. S.D. 28973 (Mo.App. S.D. 2008)

FACTS: The claimant filed a Request for Hardship Hearing pursuant to Missouri Statute 287.203. At the hearing, the claimant advised that the employer was denying necessary medical treatment. The employer stipulated that the injury was compensable and that they had provided some compensation. An ALJ entered a temporary award in favor of the claimant. The employer filed an Application for Review with the Commission, which was dismissed.

The employer then filed an appeal with the Court of Appeals, arguing that they were not appealing the temporary or partial award, but rather were appealing the Commission’s dismissal of their Application for Review. The employer argued that the Commission failed to address the critical “threshold procedural issue” of whether the ALJ exceeded his statutory authority in holding a hearing for a temporary award based on a request for hearing form that indicated it was seeking a Section 287.203 hardship hearing. The employer argued that, according to Alcorn v. Mcaninch, 236 S.W.3 111 (Mo. App. S.D. 2007), when a threshold procedural issue is raised, it must be decided by the Commission before any liability can be reviewed.

The Court of Appeals noted that Alcorn provides an exception to the general rule that the Appellate Court does not have jurisdiction to hear appeals based upon temporary or partial awards. Alcorn stated that “a court can review issues on which liability turns, such as notice or whether an employee’s injuries are work related” in such a situation. The Court of Appeals further noted that Alcorn dealt with an appellate court’s ability to review temporary awards granted by the Commission, and it does not apply to the Commission’s decision to grant or deny an employer’s request that it review a temporary or partial award entered by an ALJ.

The Court of Appeals further noted that the Commission correctly noted that its authority to review a partial or temporary ALJ’s award stems from 8-CSR 20-3.040. That regulation notes that the Commission will review an ALJ temporary award if the employer denies all liability for the payment of any compensation.


HOLDING: The employer previously stipulated that the injury was compensable and that they had provided some compensation; therefore, the Commission’s decision to not review the award was correct. The employer’s appeal to the Appellate Court was dismissed.

Jurisdiction of the Commission Top

Marianne Bennett v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. W.D. 69128 (Mo.App. W.D. 2008)

FACTS: On May 18, 2004, the claimant was awarded permanent partial disability benefits from her employer and permanent total disability benefits against the Fund. A final mandate was issued on June 9, 2004. The employer paid the PPD and the Fund continues to make ongoing PTD payments.

On October 25, 2007, the claimant filed a motion with the Commission to join her spouse as an additional party to the claim for which she was receiving PTD payments. In support of her motion, she relied upon Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. banc 2007), which held that PTD benefits should continue if an injured worker dies of causes unrelated to the work injury and leaves dependents.

The Commission found that it did not have statutory authority to consider the motion and dismissed it for lack of jurisdiction. The claimant appealed.

The Court of Appeals noted that Schoemehl has limited applicability. First, it reasoned that Schoemehl is no longer good law, as the General Assembly rejected and abrogated the holding. Second, case law limited Schoemehl’s applicability to those situations where no determination had been made regarding an injured worker’s claim against the Second Injury Fund for permanent total disability benefits. Thus, the Court held that Schoemehl would only apply if the claimant’s claim was not final.

In this case, the award was entered on May 18, 2004. The claimant had 30 days within which to file an appeal, however, she did not. Once the time for appeal has passed, the award is final, and the Commission has no jurisdiction to further delineate, expound upon or enforce an award.

HOLDING: The Appeals Court affirmed the Commission’s decision. The Appeals Court held that the final disposition of the claimant’s case occurred on June 9, 2004; therefore, the Commission had no jurisdiction to expound or modify the award.

Arising out of and in the Course of Employment Top

Lisa Stegman v. Grand River Regional Ambulance District, North Kansas City Hospital, Physicians Acute Care Services and Missouri Rural Services Workers’ Compensation Insurance Trust, Case No. W.D. 69099 (Mo.App. W.D. 2008)

FACTS: The claimant was “on call” as an emergency medical technician. She remained at her own home while “on call.” On the day of her injury, she received an emergency page to report to the ambulance barn. While answering the page, she fell in her garage and was injured.

The claimant filed a workers’ compensation claim for the injuries she sustained while answering the emergency page. Her claim was denied. After a hearing, the ALJ found that the claimant did not sustain a compensable accident, since her injury occurred while she was at home.

The claimant appealed to the Commission, which adopted the ALJ’s opinion and found in favor of the employer. The Commission opined that, in general, injuries suffered while going and coming to employment are not compensable. Furthermore, the Commission recognized a “special errand” exception, whereby an injury is compensable if sustained between the time the employee crosses the “portal” of his home and reaches the public thoroughfares. The Commission held that the garage injury was not compensable because the claimant had yet to leave her home; therefore, the portal exception did not apply.

The claimant appealed the Commission’s decision and argued that the reliance upon the “special errand” exception and the “going and coming” doctrine were erroneous. The claimant argued that the Commission should have analyzed the facts of her case in the same manner as other emergency personnel, and cited King v. City of Clinton, 343 S.W.2d, 185, 186-189 (Mo. App. 1961), which was a compensable claim that occurred when a police officer’s gun accidentally discharged causing injury, while he was at home and dressing for work.

The Court of Appeals stated that the Commission did not properly consider all of the relevant facts and seemed to simply rely upon one fact, that the claimant was injured while she was in her garage. The Court of Appeals stated that the Commission should have fully developed an argument regarding whether the claimant’s injury arose out of and in the course of her employment.


HOLDING: The Appellate Court vacated the award and remanded the matter back to the Commission for further proceedings consistent with its opinion.


Joyce Bivens v. St. John’s Regional Health Center and Sisters of Mercy Health System, Case No. S.D. 28838 (Mo. App. S.D. 2008)

FACTS: The claimant was walking down a hallway in order to clock in for work. Prior to clocking in, she fell forward to the floor onto her left side. No one witnessed the fall. The claimant called for help, complaining of back pain. A co-worker called safety and security. An officer arrived, and arranged for the claimant to be transported to the emergency room. He also took photographs of the incident scene and of the bottom of the claimant’s shoes.

The claimant initially reported that she “tripped and fell face first, landing on her stomach.” She told the officer that she “just fell.” The emergency room records also contained a history consistent with this statement. At trial, the claimant claimed her foot stuck to the floor, causing her to fall. The Commission noted that the employer was able to show, based upon the photographs taken by the officer, that there was nothing that would have caused the claimant’s foot to stick to the floor.

The Commission held that there was no causal connection between the claimant’s employment and her injury. It noted that, “It is not enough that the employment may have simply furnished an occasion for an injury from an unconnected source.” From the Commission’s decision, the claimant presented two points on appeal. First, the claimant argued that her injury came from a hazard or risk that was related to employment. Second, the claimant argued that her injury occurred from a risk that she was exposed to in a greater degree in her employment than in her non-work life.

The Court of Appeals reasoned that there was a recent change in Missouri statute 287.020.10, which defines accident. The new statute notes that, “An injury is not compensable merely because work was a triggering or precipitating factor.” To be compensable, the injury must be a product of “a hazard or risk unrelated to the employment to which workers would have been equally exposed to in normal non-employment life.”

HOLDING: The Court of Appeals affirmed the Commission’s decision. It held that the Commission correctly assessed the credibility of the witnesses. The Commission noted that the claimant failed to show that her injury resulted from an unusual risk not shared by the general public; therefore, her injury was not compensable.

Future Medical Treatment Top

Clifford Conrad v. Jack Cooper Transport Company, Case No. W.D. 69407 (Mo.App. W.D. 2008)

FACTS: The claimant’s job required him to refuel trucks. On April 30, 2004, the claimant twisted his left knee while exiting a truck. He informed his employer of the injury and was sent to a clinic, where it was determined that he sustained a metical tear. As a result, he was referred to Dr. Jones, an orthopedic surgeon, for surgery on his left knee.

Dr. Jones had performed a prior arthroscopic surgery on the claimant's left knee a few years earlier, when he suffered a non work-related injury. Dr. Jones once again performed arthroscopic surgery on the claimant’s left knee to repair a meniscal tear and some cartilage damage that resulted from the claimant’s work related injury. On August 17, 2004, the claimant was able to return to work without any restrictions.

At a hearing, an ALJ awarded the claimant PPD benefits and future medical expenses. The employer appealed the award of future medical to the Commission, which modified the award to deny future medical benefits. From that, the claimant appealed, arguing that the Commission erred in denying future medical treatment because the evidence presented showed that the claimant’s work injury aggravated a pre-existing condition to such a degree that the need for a total knee replacement was necessary in the future.

The Court of Appeals reviewed the Commission’s findings. The Commission held that future medical treatment was not necessary, because Dr. Jones, the only testifying medical expert, opined that the claimant’s need for future treatment was due solely to his pre-existing condition. The claimant argued that the Commission misinterpreted Dr. Jones’ testimony in that the doctor actually opined that the pre-existing condition was the substantial or primary factor in the need for the total knee replacement; however, it was not the “sole factor” in the need for future medical treatment.

The Court of Appeals noted that in an August 16, 2005 letter, Dr. Jones stated that the claimant’s work related injury aggravated his pre-existing condition to the point that he would need a future knee replacement. Dr. Jones went on to state, “It appears from the history that his injury did aggravate his underlying disease process enough to consider this part of his claim.”


The Court of Appeals found that Dr. Jones attempted to clarify his position in a separate letters dated January 30, 2007 and March 15, 2007. In the January 30, 2007 letter, Dr. Jones stated that the primary source of the chondral wear, which would likely result in the claimant’s need for a future need replacement, was his pre-existing degenerative condition. Dr. Jones stated, “The injury [,] although it may have aggravated to some degree [employee’s] articular patellofemoral pain, again was not the primary source for the eventual need for a total knee replacement. The primary reason for a total knee replacement will be definitely in my opinion the pre-existing wear that was present at the time of the arthroscopy.”

In the March 15, 2007 letter, Dr. Jones stated that the work accident was not the substantial contributing factor that would require the claimant to undergo a total knee replacement in the future.”

The Court of Appeals made much of the fact that Dr. Jones did not retract his original letter, in which he stated that the work injury aggravated the underlying disease process enough to consider a part of the claimant’s claim.

The Court of Appeals went to state that the employer and insurer did not cite, nor was the Court able to find, any authority indicating that, before a claimant could recover future medical benefits, it must be shown that the work related injury was the primary or substantial reason requiring future medical treatment.

It was expressly noted by the Court of Appeals that a claimant can receive future medical benefits if a work injury aggravates a pre-existing condition to the point that the claimant is likely to need future medical care. The Court then once again noted that Dr. Jones indicated in the initial August 15, 2005 letter, and in the subsequent January 30, 2007 letter, that the claimant’s work injury aggravated is pre-existing condition to such a degree that the claimant required a total knee replacement in the future.

HOLDING: The Court of Appeals held that the Commission erred in denying the claimant future medical benefits. Because the claimant’s work related injury aggravated his pre-existing condition to the point that he will need future treatment, the Court of Appeals found his future treatment to be compensable. It remanded the case back to the Commission for proceedings that were consistent with its opinion.

Employee must Submit to a Vocational Examination Top

State of Missouri ex rel. Helen Carter v. City of Independence, Missouri, Case No. W.D. 68732 (Mo.App. W.D. 2008)


FACTS: In October 1998, the claimant, a custodian, filed a worker’s compensation case for occupational injuries that she sustained as a result of repetitively lifting trash cans and ladders, mopping and buffing, shoveling, etc. Subsequently, she amended her claim to allege that she was permanently and totally disabled.

The employer denied liability and in 2006, the employer requested that the claimant be evaluated by a vocational counselor. The claimant filed a Motion for Protective Order, and after a hearing before an ALJ, an order was issued denying the motion and finding that the employer was entitled to a vocational examination.

Following that, the claimant filed a Writ of Prohibition in the Circuit Court alleging that the ALJ exceeded her authority, because RSMo Section 287.143 (2005) does not authorize the ALJ to order a claimant to submit to a vocational examination.

The Circuit Court agreed with the claimant and noted that the August 28, 2005 amendment, which added language stating that, “An employee shall submit to appropriate vocational testing and a vocational rehabilitation assessment scheduled by an employer or its insurer,” did not apply retroactively because it constituted a substantive change in the law that imposed an additional obligation on the employee.

From that, the employer appealed, arguing that the Circuit Court lacked jurisdiction to review the ALJ’s award, because it concerned discovery and fell under the exclusive jurisdiction of the Division. The employer also noted that the Circuit Court was not presented with the Division’s transcripts to review before making a decision. The employer further argued that the Circuit Court abused discretion in issuing the writ, as the claimant did not present evidence of irreparable harm from the ALJ’s order, and the Circuit Court erred in determining that the 2005 amendment to section 287.143 was substantive in nature.

The Court of Appeals noted that it previously recognized the Circuit Court’s jurisdiction to issue a Writ of Prohibition directed to an administrative agency. Furthermore, the Appellate Court held that in issuing a writ, the Circuit Court was not required to review the ALJ’s specific reasoning before determining, whether, as a matter of law, the ALJ exceeded her authority. Therefore, the Appellate Court denied the first two points on appeal.

The Court of Appeals then stated that, as a general rule, if a statutory amendment is deemed to be procedural in nature, it will be applied retroactively to cases already pending on the effective date of the amendment, unless an express contrary intent appears form the terms of the amendment.


The Court opined that this case presented an issue of first impression, as it dealt with the 2005 amendment to Section 287.143; however, the court found that cases prior to the amendment were instructive. Specifically, the court noted that in State ex rel. Lakeman v. Siedlik, 872 W.E.2d 503 (Mo. App. W.D. 1994), the Appellate Court previously held that the ALJ did not have authority to order a claimant to submit to an examination by a non-physician expert. In reaching that prior decision, the Appellate Court noted that “the scope of discovery available to each party in a workers’ compensation case is set by statute.”

The Court of Appeals opined that the reasoning set forth in Lakeman clearly indicated that the ALJ’s authority to order a claimant to submit to an examination of any sort falls under its ability to control discovery procedures.

HOLDING: The Appellate Court held that the amendment to Section 287.143 was procedural; therefore, it applied retroactively. In light of that, the claimant was required to submit to a vocational examination. The Court of Appeals reversed the Circuit Court’s ruling and remanded for an entry of an order quashing the Writ of Prohibition.

Commission Trends Top

Over the last three months, the Commission has ruled on 43 cases and reversed or modified only seven of those cases. Of those, four were changed regarding liability against the employer and insurer.

In Thomas Barton, deceased, Donna Marie Barton, widow, Catherine Marie Barton, Maria Rose Barton, and Alexander Thomas Barton, dependent children v. W M Properties and Vigilant Insurance Company c/o Chubb Services, Inj. No. 04-034502, the claimant was involved in an automobile accident while returning home from a work meeting. The ALJ reasoned that the claimant was on a purely personal deviation, since he did not take a direct route home. Therefore, his accident was not compensable. The ALJ further found that the claimant was so intoxicated at the time of the accident that he was physically and mentally unable to engage in his employment. Thus, in either case, the award indicated that dependents had not me their burden of proof because they did not show that the automobile accident arose out of and in the course of employment.

The Commission reversed the ALJ and held that the claimant’s accident and death arose out of and in the course of his employment. At the time of his accident, the Commission opined that the claimant was at a place where he could reasonably have been expected to be in the fulfillment of his work duties, which included attendance at the SLAA meetings after normal work hours. The Commission found insufficient proof that the claimant was involved in any personal deviation from his business purposes, despite taking a longer route home, or that he was incapable of engaging in his work due to alcohol consumption.


In Jeff Botkins v. Diemakers/Intemet, Sentry Insurance Company, Inj. Nos. 98-060682 and 00-129558, the claimant alleged right shoulder and back injuries as a result of a June 1998 accident and alleged bilateral carpal tunnel injuries due to repetitive trauma in the 2000 claim. The ALJ found that the claimant’s bilateral carpal tunnel condition was a continuation of the injuries that the claimant sustained in June 1998. Furthermore, the ALJ found that the claimant sustained a PPD of 25% for the right shoulder and 40% for the back.

The Commission modified the ALJ’s award and determined that the carpal tunnel condition was compensable. The Commission concluded that the combination of the claimant’s pre-existing disabilities and his September 22, 2000 occupational disease rendered him permanently and totally disabled. The Commission further concluded that the competent and substantial evidence supported a finding that the employer was liable for 15% permanent partial disability at the level of the left wrist, 13% permanent partial disability at the level of the right wrist, and a 10% load. With regard to the 1998 shoulder and back claim, the Commission further modified the award to include payment for past and future medical expenses.

In Winfred S. Caldwell, deceased, Lynda Caldwell, widow and Samuel Caldwell, minor son v. Delta Express, Inc., American Home Assurance and AIG Claims Services, Inc., Inj. No. 05-105159, the arguments concerned the calculation of the deceased claimant’s average weekly wage and resultant death benefits compensation rate for the dependents. The Commission modified the ALJ’s determination and held that the average weekly wage of the deceased claimant was $703.82 and the corresponding death benefits rate for the dependents is $469.21.

In Stephen Johnson v. Jefferson City Public Schools, Missouri Retailers Insurance Trust, and Treasurer of Missouri as Custodian of Second Injury Fund, Inj. No. 04-140515, the ALJ determined that the claimant’s hip condition, including the need for hip replacement surgery, was causally related to the claimant’s work; however, the ALJ failed to award future medical care for the claimant’s hip condition.

The Commission affirmed all findings and conclusions of law made by the administrative law judge, but determined that the claimant demonstrated a need for future medical care and treatment with regard to his hip. The ALJ’s award was modified to include future medical treatment.

 

Case Law Update - July 2008 - September 2008

Exclusive Jurisdiction Top

Nicholas Anderson by his Next Friend, Crystal Anderson v. Ken Kauffman & Sons Excavating, L.L.C., Case No. WD66777 (Mo. App. W.D. 2008)

FACTS: On November 14, 2005, Brian Reeves, the father of Nicholas Anderson, died as the result of a work related injury. Nicholas Anderson, by and through his mother, filed a wrongful death claim against his father's employer, alleging they failed to take certain safety precautions. The employer filed a motion to dismiss due to lack of subject matter jurisdiction, asserting it was immune from civil liability because workers' compensation was the exclusive remedy. Following a briefing and hearing, the trial court entered a final judgment dismissing the wrongful death suit due to a lack of subject matter jurisdiction.

Nicholas Anderson appealed, asserting that the dismissal was erroneous because the wrongful death claim arose during the 108 day period from August 28, 2005 through December 14, 2005, where the exclusivity requirement was not in effect. The exclusivity provision was not included in the amended act, but was again amended to reintroduce the exclusivity provision in a special session in September 2005. This amended reintroduction did not include an emergency clause, so it did not take effect for ninety days.

HOLDING: When a statute's language is ambiguous or if its plain meaning would lead to an illogical result, extrinsic matters such as the statute's history, surrounding circumstances, and objectives to be accomplished through the statute may be considered. The amendment made during the special session was merely a drafting error correction. Therefore, the trial court did not misconstrue the workers' compensation statute, and exclusive jurisdiction remains with workers' compensation.

Larry Boshears and Jamie Baggett v. Saint-Gobain Calmar, Inc. and William T. Whitlow, Case No. WD67443 (Mo. App. W.D. 2008).

Marion Michael Distefano v. Saint-Gobain Calmar, Inc. and William T. Whitlow, Case No. WD67541 (Mo. App. W.D. 2008).

FACTS: Larry Boshears, Jamie Baggett and Marion Distefano sued Saint-Gobain Calmar for negligence due to injuries sustained while performing work on Calmar's premises.


Calmar is in the business of manufacturing liquid dispensing systems, such as trigger sprayers and lotion pumps. In March 2004, Calmar began a construction project to renovate one of its manufacturing plants. Calmar hired William Whitlow to serve as Plant Engineer. Seventy-five percent of Whitlow's duties were related to normal maintenance of the plant while the remaining 25% were related to remodel, construction and renovation.

Calmar hired outside contractors to perform the demotion and renovation work. Country Club Contractors was hired to remove gas lines and electrical lines. Country Club subcontracted with Docs Painting, which is where Boshears and Baggett worked. Calmar hired American Sprinkler, which is where Distefano worked.

On June 22, 2004, Boshears and Baggett were cutting a gas pipe when a fire erupted. Distefano noticed the blaze and helped remove the two men from the burning fire. When it was all over, each man had suffered burned to their faces, arms, shoulders and upper extremities. Whitlow, Calmar's plant engineer, admitted that he was supposed to turn off the gas line, which caused the fire; however, he had failed to do so.

Calmar does not dispute that Boshears, Baggett and Distefano suffered injuries. Instead, Calmar argues that it is their statutory employer, so Workers' Compensation is the exclusive remedy. In support of this argument, Calmar relies upon West v. Posten Constr. Co., 804 S.W.2d 743, where an individual who was contemporaneously an owner and general contractor was liable to his independent contractor for Workers' Compensation benefits as a statutory employer.
A verdict was awarded against Calmar in Circuit Court, and from that, Calmar filed a Motion asserting that the Circuit Court lacked subject matter jurisdiction, because pursuant to RSMo 287.040.2, the matter fell within the exclusive remedy of Workers' Compensation since Calmar was the statutory employer of Boshears, Baggett and Distefano. The Circuit Court denied the Motion, and Calmar appealed.

The Court of Appeals noted that RSMo 287.040 holds an employer liable, under Workers' Compensation, to contractors, subcontractors, and their employees who are injured on the premises of the employer Awhile doing work which is in the usual course of his business.@ Furthermore, if an owner serves a dual capacity as both owner and general contractor in renovations that are the Aregular part@ of the business then the owner is a statutory employer and Workers' Compensation is the exclusive remedy.

HOLDING: The Appeals Court noted that Calmar is unlike the owner in West. In West the owner had a dual role of contractor and owner, and was performing contracting work as a regular part of his business. Calmar, although the owner, was not renovating the manufacturing plant as Aa regular part@ of its fluid dispensing business. The Court held that the exception did not apply and that Calmar was not a statutory employer. In light of this, Workers' Compensation was not the exclusive remedy and the civil cases could move forward.


Jurisdiction to Appeal Temporary or Partial Awards Top

Kristen Norman v. Phelps County Regional Medical Center and Liberty Mutual Insurance Co., 256 S.W.3d 202 (Mo. App. S.D. 2008).

FACTS: The claimant alleged a post 2005 amendment work related injury, and at a hearing, the ALJ denied all benefits. The claimant appealed to the Commission, at which time a temporary or partial award finding the claimant sustained a compensable injury that entitled her to workers' compensation benefits was issued. The employer and insurer then appealed.

Typically, only final awards are appealable and temporary or partial awards are not. There are two exceptions for appealing temporary or partial awards in workers' compensation. The first, which was created by statute, states that a temporary or partial award of permanent total disability may be appealed. The second is a judicially created exception and allows for limited review where an employer claims it is not liable for paying any compensation and is disputing all liability. This judicially created exception came into existence before the 2005 law change. The Court noted that the 2005 amendments changed the rule construction in that, Areviewing courts shall construe the provisions of this chapter strictly.@

HOLDING: Application of the prior judicially created exception would be in violation of the clear legislative intent to limit the appellate review of the Commission. In compliance with the recent amendments to the workers' compensation law, the Court of Appeals found that it was without jurisdiction to hear an appeal from a temporary or partial award of the Commission.

Motor Control Specialties, Inc. and The Ohio Casualty Insurance Company v. Stephen M. Petelik and Labor and Industrial Relations Commission, Case No. WD68210 & WD68753 (Mo. App. W.D. 2008).

FACTS: Stephen Petelik filed a claim for Worker's Compensation benefits alleging injuries to his left arm and lower back. Motor Control Specialties and their insurer stipulated that the arm injury was related to the work accident, however, denied that the back injury was related.

At a hearing, an ALJ issued a temporary award and found that Petelik's back injury was related and ordered Motor to pay past and future medical bills, as well as, TTD benefits. Motor asked the Commission to review the temporary award and argued that it was not liable for the payment of any compensation. The Commission dismissed the appeal stating that it lacked jurisdiction to review a temporary award. From that, Motor appealed to the Eastern District. The Eastern District also dismissed the appeal for lack of jurisdiction.


From the Eastern Districts dismissal, Motor filed a Declaratory Judgement with the Circuit Court in the Western District arguing that 8 CSR 20 -3.040 (2), which concerns the appeals' procedures for temporary awards, violated the United States Constitution and Missouri's Bill of Rights in that it Abars the employer/insurer's right to a timely review of adverse decisions and therefore constitutes a deprivation of property without due process of law.@ Basically, Motor argued that it was unfair that it risked penalties if it did not comply with payment of the temporary order, before a final award or judicial review. Petelik filed a Motion to Dismiss the Declaratory Action, which the court granted. In granting Petelik's motion, the court held that it lacked jurisdiction to declare 8 CSR 20-3.040 unconstitutional, because the hearing before the ALJ was sufficient to satisfy due process.

From the Western District's dismissal, Motor appeals.

HOLDING: The Court of Appeals for the Western District held that the Circuit Court's decision finding that 8 CSR 20 - 3.040, the appeals process for temporary awards, was constitutional was inconsistent with its decision to dismiss the declaratory action for lack of subject matter jurisdiction.

The Court noted that Motor challenged the validity of the appeals process for temporary awards and not the actual manner in which the regulation was applied to their case. Since the statute itself was challenged using valid constitutional principles, then the Western District could not dismiss the Declaratory Action for lack of subject matter jurisdiction. The Appeals Court remanded the case back to the Circuit Court for the Western District to make a ruling on the merits of Motor's petition regarding the constitutionality of 8 CSR 20-3.040 as it applies to the appeals process for temporary awards.

James R. Doerr v. Teton Transportation, Inc., Case No. SD 28686 & 28698 (Mo. App. S.D. 2008).

FACTS: James Doerr is an over the road truck driver for Teton Transportation. Doerr alleges that on August 6, 2005, while exiting his truck in Dalton, Georgia, he stepped in a pot hole and twisted his right ankle. Teton denied the claim, because Doerr did not follow the accepted route and was actually 50-75 miles off course when he injured his ankle in Dalton, Georgia.

At a hearing before an ALJ, a temporary award was issued which found his ankle injury compensable and awarded past and future medical expenses, TTD benefits and attorney fees and costs. Teton filed an application to review of the temporary award with the Commission. The Commission modified the temporary award and reversed the award of costs. From that, Doerr appeals and argues that the Commission did not have jurisdiction to modify a temporary award. Teton cross-appealed and argued that the Commission erred in finding it liable for Doerr's injuries.

HOLDING: The Court of Appeals held that the Doerr's argument lacked jurisdiction. The court noted that Section 287.495 authorizes an appeal from a final award of the Commission. If the award is not final, then an appeal may be heard if it concerns the issue of the employer's liability. The Appeals Court noted that Doerr's arguments do not concern the employer's liability, but instead involve a temporary award reversing costs. In light of that, Doerr's appeal lacked jurisdiction.


With regard to Teton's argument, the Court of Appeals held that it was able to review the Commission's decision since it regarded the employer's liability. In reviewing the Commission's decision the Court noted that it will only reverse or set aside an award if there is not sufficient competent evidence to support the award. The court held that the evidence supported that Doerr, an over the road truck driver, would reasonably travel through Dalton, Georgia to complete his route. Therefore, an injury sustained in Dalton, although not part of the planned route, was within the course and scope of the employment and was compensable.

Jurisdiction of the Commission Top

Sachs Electric Co. and TIG Insurance Co. v. Robert Mapes, deceased, and Anna Mapes, 254 S.W.3d 900 (Mo. App. W.D. 2008).

FACTS: Sachs Electric Co. employed the claimant in October 1987, prior to his death from exposure to asbestos. In 1994, the Division ordered the employer to pay the claimant's widow $269.81 per week, and the amount was affirmed by the Commission. In 2007, the employer and insurer filed an appeal with the Commission pursuant to section 287.470, which states that an appeal can be made at any time due to a change in condition, requesting a review of the death benefit award. They requested the review due to an unspecified 1999 third-party recovery that resulted in an overpayment of $4,184.80.

The Commission dismissed the application because the employer and insurer could not show a change in physical condition of the claimant had occurred. Therefore, the Commission stated it had no statutory authority to review the matter. The Court of Appeals noted that Missouri courts have consistently interpreted the Achange of condition@ language in section 287.470 to mean a change in physical condition. The employer and insurer argued that section 287.470 did not offer employers and insurers any relief in situations where final awards of the Commission need to be altered to correct past or future errors.

HOLDING: Without a change in physical condition, the Commission did not have jurisdiction to hear the employer and insurer's appeal. Decades of case law have denied the Commission any more authority than in the statute. Legislation alone can increase the jurisdiction of the Commission.


Causation Top

Norman Heiskell, deceased, Paula Heiskell, Dependent Spouse, and Charissa Heiskell and Aaron Heiskell, Dependent Children v. Golden City Foundry and Traveler's Casualty and Surety Co., Case No. 29054 (Mo. App. S.D. 2008).


FACTS: On November 19, 2003, the claimant passed away at home from a pulmonary embolism. The claimant had been employed by Golden City Foundry for thirteen years, and co-owned the business with his cousin. On August 19, 2004, the claimant's wife and children filed a claim for compensation, alleging the claimant's death resulted from work related blunt force trauma sustained on October 31, 2003 at approximately 12:00 a.m. No other information was noted with respect to the injury.

A hearing was held, during which the claimant's father testified that he saw the claimant Alimping real bad@ but the father could not recall which leg was injured. The claimant's father stated that the claimant told him he Aabout broke his leg@ while at work when he was Aloading something or moving something.@ He thought that something that weighed about 500 pounds fell off of something and hit the claimant in the leg. The claimant told his father he would be all right and did not seek medical treatment. The claimant's father also testified that, three days before his death, the claimant and the father were preparing to go hunting when the claimant passed out. The claimant was taken to a hospital where a doctor told the claimant he needed to be admitted for at least 48 hours so tests could be performed. However, the claimant did not want to stay and left the hospital.

The claimant's daughter testified that, about three to four weeks before his death, her father asked her for Asports cream@ for an upper thigh injury, and that her father told her a pallet had hit him in the thigh. The claimant's son testified that about three weeks before he passed away, the claimant told him that he was Amessing with a pallet,@ it started to fall, the claimant went to catch it and it landed on his lower abdominal area and his leg.

The claimant's wife testified that the claimant was diabetic, but only sometimes took the prescribed medication. She further testified that she was not aware of a work accident, but stated the claimant wouldn't have told her about an accident because she would have made him go to the doctor and he hated doctors. George Nichols, a friend of the claimant, testified that he saw the claimant limping and the claimant stated that he hurt himself a little. Mr. Peterson, the claimant's cousin with whom the claimant co-owned the business, testified that he worked closely with the claimant and never saw him limping during the applicable time period.

Dr. Koprovica testified that, based solely upon the father's testimony, the claimant's work injury caused deep vein thrombosis that embolized causing the pulmonary embolism. The claimant's personal doctor noted that the claimant had followed up with him after his hospital visit and made no mention of a work injury. There was no mention of the claimant's leg, or any leg pain, at all in the personal physician's records. Dr. Boulware testified that numerous things could have caused the claimant's pulmonary embolism and he could not conclusively state the specific cause of the embolism. He also testified that there was no medical evidence to support a work related injury.

An ALJ found that the claimant's pulmonary embolism was caused by a work related injury, and ordered the employer and insurer to pay medical benefits in the amount of $1,511.15 and funeral expenses in the amount of $5,000.00. On appeal, the Commission ruled that the claimant's death was not the result of a work related injury and denied death benefits on the grounds that the claimant's dependents had not met their burden of proof that the claimant sustained a work related accident and therefore failed to satisfy the burden of proof that the claimant's death was due to a work related accident.

The claimant's dependent's appealed, alleging the Commission applied the wrong legal standard, in that the Commission used a post 2005 standard in a pre 2005 case. They also alleged the Commission's finding applied the wrong law because Athe applicable law to this case is that all doubts must be resolved in favor of the [Employee] and in favor of coverage.@ They also alleged that the Commission improperly disregarded the testimony of the father, the claimant's children, and Mr. Nichols.

HOLDING: On review of the Commission's award, the Court of Appeals noted that all law cited by the Commission was pre 2005 law, so there was no indication that the Commission applied the wrong law. With respect to the second argument, the Court of Appeals noted that there was never any requirement that Commission accept all the claimant's evidence as true. In this case, after evaluating all the evidence, the Commission determined that the opinion of Dr. Boulware was more credible than Dr. Koprovica. The Commission is the sole judge of credibility. The Commission did not exclude the testimony of the father, the claimant's children and Mr. Nichols. Rather, the Commission found their testimony to not be credible in that their testimony was based upon singular statements made by the claimant. The Commission further found their remarks inherently biased because they were family members, particularly when corroborating evidence was lacking.

Elaine Casteel v. General Council of the Assemblies of God and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 257 S.W.3d 160 (Mo. App. S.D. 2008).

FACTS: The claimant alleged two work related injuries. The first was an accident claim for injuries to the neck and shoulders. The second was an occupational disease claim for the same body parts.

At a trial, the ALJ awarded the claimant 22% of the right shoulder, 15% of the left shoulder and 10% of the body as whole referable to the neck in the accident case. The ALJ determined that the evidence did not support a finding of an occupational disease. The ALJ specifically found the employer and insurer's expert, Dr. Woodward, to be more persuasive.

On Appeal, the claimant argued that Dr. Woodward's opinions lacked foundation because the doctor relied upon a video that did not depict all of the claimant's job duties and did not examine the claimant or take a history relating to the occupational disease claim. While the video failed to depict the Abreaking process,@ the claimant admitted that breaking projects occurred only four to five times a year. The claimant further argued that the Commission exceeded it powers in admitting Dr. Woodward's Ainadmissible opinions,@ and that the record cannot support the award without them.

HOLDING: Dr. Woodward did not rely Asolely@ on the video. He was the treating physician following the claimant's fall at work and had examined and taken or updated the claimant's medical history multiple times during the fifteen-month treatment period. Finally, when the video was presented as evidence, the claimant made only the Afoundational objections from the video,@ but not the other objections she was now asserting. The video was properly introduced, the claimant's objection was properly ruled upon, and the Commission was within its discretion to rely on the opinions from Dr. Woodward.

Stanley Roberts v. City of St. Louis and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED 90150 (Mo. App. E.D. 2008).

FACTS: Stanley Roberts was an employee for the City of St. Louis. In October 2002 he was involved in an automobile accident, while engaged in the course of his employment for the City, subsequently, he filed a formal claim for compensation.

On April 25, 2006, the parties involved tried the matter before an ALJ. Shortly after the end of the trial, the parties agreed to a settlement, which included a $200,000 lump sum payment and the set-up and funding of a Medicare set-aside trust. The agreement was not reduced to writing, because the amount of money needed to fund the trust was yet to be determined. In light of the agreement, the parties went before the ALJ and requested additional time to determine the monetary requirements to fund the trust.

On August 2, 2006, before the parties reduced their agreement to writing, the ALJ issued an award, which concluded that the employee was not permanently and totally disabled as a result of the primary work injury. In light of the award, the claimant filed an application with the Commission to enforce the oral settlement agreement. The Commission agreed with the claimant and ordered the City to pay a lump sum of $200,000. From that, the City appeals.

The Court of Appeals held that there was not sufficient and competent evidence to support the Commission's determination that the City agreed to fund the Medicare Trust. The Court based its decision upon standard rules of contract, which require meeting of the minds between all parties, before an agreement is reached.

HOLDING: In this case, the court noted that neither party knew Athe exact numbers@ that were to be placed in the stipulation, because the issue with the funding of the Medicare trust had yet to be decided. The court reasoned that since there was no meeting of the minds regarding the exact amount of the settlement, then the agreement was not enforceable.

Accident Top

Susan Van Winkle v. Lewellens Professional Cleaning, Inc. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD68669 (Mo. App. W.D. 2008).

FACTS: One of the claimant's specific job duties was to clean patient rooms, which required her to strip the beds of their sheets, clean the bed, and then put clean sheets on the bed. While cleaning a patient room on April 4, 2003, she retrieved clean bedding from the hallway, which she then placed in a chair. When she was ready for it she turned to the chair in order to pick up the bedding. When doing so, the claimant felt a pop in her left hip, and, shortly thereafter, a severe burning sensation and sharp pains in the left leg. The claimant reported the incident to her supervisor, filled out paperwork, and was taken to the office of Dr. Jones, where she received treatment.


The claimant continued to receive treatment, and after an MRI and CAT scan, pre-existing cysts were found on the claimant's spine. The claimant then began treating with Dr. Oh, who performed two surgeries to remove the cysts. After the surgeries, the claimant continued to have significant complaints, at which time Dr. Oh stated that the claimant's complaints were not related to the cysts, but to a musculoskeletal strain.

The claimant then filed a claim, alleging PPD, and, in the alternative, PTD. At a hearing, an ALJ determined that the claimant did not sustain a compensable injury or accident and denied all benefits. The Commission agreed with the ALJ.

HOLDING: This is an 2003 case, and was decided based upon the old law. The Court of Appeals determined that the claimant was involved in an accident, because the claimant identified an Aevent,@ the hip pop and pain. This event was not disputed by the employer and insurer. The claimant could have sustained an injury, despite the fact that she was performing actions that she performed outside of work in her daily life, because those actions were an integral part of her job. The Court of Appeals remanded the case for further proceedings to determine whether her job duties caused her injury, need for medical treatment, and disability.

Past Medical Expenses Top

Andrew Meyers v. Wildcat Materials, Inc. and Zurich Insurance Co., Case No. 28744 (Mo. App. S.D. 2008).

FACTS: The claimant had a job that required him to load, deliver and unload sheet rock and other building materials that frequently involved lifting more than 100 pounds alone or with a helper. In August 2003, the claimant began to experience leg numbness, and medical records indicated no recent trauma but that the claimant did a lot of pulling and lifting at work. In January 2004, the claimant sought emergency treatment for left leg pain, was given orders to remain out of work. At that time, the claimant completed a disability insurance application indicating his back complaints were not work related. The claimant was then informed that he required surgery. He notified his employer of the upcoming surgery and the employer consented to the claimant being off of work. After the surgery, the claimant was returned to work with a 50-pound lifting restriction.

The claimant and the employer testified that they did not know repetitive back injuries were compensable under workers' compensation. Therefore, the claimant never requested medical treatment, or submitted medical bills to the employer, before his surgery.

At trial, an ALJ determined the claimant's back injury was compensable and ordered the employer and insurer to reimburse the claimant for past medical expenses, in addition to other workers' compensation benefits. The Commission adopted the ALJ's award.


The employer and insurer appealed, arguing that the Commission erred when ordering that they reimburse the claimant for past medical expenses because the claimant obtained the medical treatment on his own without affording the employer and insurer the opportunity to authorize medical treatment.

The facts of this case were unique because neither the claimant nor the employer were aware that the claimant suffered a work related injury at the time the claimant sought and was provided appropriate medical treatment. The Commission found that the employer and insurer did not suffer any prejudice as a result of the claimant's medical treatment. The Court of Appeals noted that there is no assumption that the employer's right to direct medical treatment trumps the claimant's right to receive medical treatment.

HOLDING: The Court of Appeals found that, if a claimant seeks medical treatment for a work condition without knowledge at the time of that treatment that the condition was work related, and the employer is not prejudiced by that treatment then a liberal construction requires the employer and insurer reimburse the claimant for that treatment even though the employer and insurer did not have the opportunity to select treatment. There would be likely be a different result if this was a new law case, because the new law must be Astrictly construed.@

Employer/Employee Relationship Top

Phillip Hurn v. Schoen Equipment Inc., 253 S.W.3d 587 (Mo. App. S.D. 2008).

FACTS: The claimant approached the business manager of Schoen Equipment about a job. The claimant heard that Schoen was looking for someone to paint some buildings, and the business manager told the claimant they would discuss permanent employment after the painting was complete. The claimant was paid $8.00 and hour and did not purchase any of the paint or supplies needed to paint the buildings. The claimant did not work a set schedule, but kept track of the hours he did work. He was told he could work during or after business hours, and was paid in cash by Mr. Schoen at Mr. Schoen's office at Schoen Equipment.

The claimant fell from a ladder while painting a building, injuring his right knee. He required surgery and rehabilitation. The claimant filed a claim, and Schoen denied the claimant was an employee. After a hearing, the ALJ determined the claimant suffered a compensable injury and Schoen and its insurer were liable for benefits. Schoen and its insurer were ordered to pay past medical bills, 21 weeks of TTD, 17.5% of the left knee. The employer and insurer appealed, arguing that the Commission erred in determining that the claimant was an employee of Schoen.

HOLDING: The employer and insurer's brief did not comply with Rule 84.04(d)(2)(C) because the points relied on did not explain why the evidence was insufficient, and therefore presented nothing for appeal. The case could have been dismissed for this reason. However, the Court of Appeals reviewed the record and determined that the Commission's decision was supported by competent and substantial evidence.


Permanent and Total Disability Benefits Top

Wanda Farmer v. Advanced Circuitry Division of Litton, Consitution State Services Co. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund. 257 SW3d 192 (Mo. App. S.D. 2008).

FACTS: The claimant had a history of back injuries. In 1975, she injured her back while working for a different employer, and underwent surgery in 1977. In 1983, the claimant injured her back again, while working for this employer. She underwent a second back surgery following that injury. Since her second back surgery in 1983, the claimant has not been able to return to work for the employer, but has been able to run a babysitting service out of her home.

In June 1992 the claimant filed a claim pertaining to the 1983 back injury, requesting benefits from the employer and the Second Injury Fund. At a hearing, an ALJ awarded the claimant 35% of the body as a whole for her back condition, as well as future medical treatment. This decision took into account the fact that the claimant was earning income through her babysitting service. The Commission adopted the ALJ's ruling.

On appeal, the claimant argued that the Commission should have found her permanently and totally disabled. On cross appeal, the employer argued that they should not be required to provide future medical treatment. The employer presented evidence that, in the more than 20 year period since the claimant's 1983 injury, she had slipped and fallen on ice three times, was in a car accident, and slipped on wet grass and Adid the splits.@ However, two doctors, Dr. Volarich and Dr. Harmon, enumerated that the incidences did not cause any new back injury.

HOLDING: The claimant was currently employed in the open labor market by virtue of her babysitting business. Therefore, she is not permanently and totally disabled. There was sufficient and competent evidence to support an award of future medical treatment.

Michael Strait, Natural Father and Legal Guardian of Joshua Neal Strait and Mick Tyler Strait v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 257 S.W.3d 600 (2008) (en banc).

FACTS: Rosalyn Strait was injured on the job and awarded permanent total disability benefits. After the award, but within the 30-day period while the case was subject to review, the claimant died of injuries unrelated to her work injury. The Second Injury Fund filed a timely appeal.


On appeal, the court of appeals substituted Michael Strait, Rosalyn's former husband and father of her minor dependent children on behalf of the claimant, and affirmed the award. After the appeal, Michael Strait moved the Commission substitute the children as recipient's of their deceased mother's benefits, in light of the initial Schoemehl opinion provided by the Missouri Supreme Court. This opinion provided that permanent and total disability benefits were to be paid to the claimant's dependents, even when the claimant's death was not caused by the work related injury. The Schoemehl opinion was handed down during the 30-day period during which any party in the Strait case could have filed an appeal. The Commission held it had no jurisdiction and denied the motion.

HOLDING: Strait's claim was still pending at the time of her death because the 30-day period when the matter was still under review and could be appealed had not yet elapsed. Therefore, Schoemehl applied to the Strait case and the Commission must follow it. The case was remanded to the Commission to grant benefits to the minor children as of the date of their mother's death.

Failure to Carry Workers' Compensation Insurance Top

State of Missouri v. Robert Salter, Case No. SC88274 (2008).

FACTS: Mr. Salter was convicted for failure to insure workers' compensation liability. He appealed, alleging the statute is unconstitutional. Because the appeal involves the validity of a state statute, the Supreme Court has exclusive jurisdiction.

RSMo section 287.128.5 states that any employer failing to insure his liability under workers' compensation is guilty of a class A misdemeanor, and, in addition, shall pay the state of Missouri a penalty in an amount equal to twice the annual premium the employer would have been paid had they been insured or twenty-five thousand dollars, whichever amount is greater. This section goes on to state that anyone who has previously plead guilty or has been found guilty of violating these provisions shall be guilty of a class D felony.

The claimant was charged with a class D felony for failure to carry workers' compensation insurance since February 2003, although it was required to do so because it had more than five employees in 2003 and 2004. At trial the claimant was found guilty, sentenced to one year in prison and fined $5,000.00. The court also imposed a further penalty of $25,000.00.


Mr. Salter alleged RSMo section 287.128.5 violated the Missouri Constitution because it violated the single subject and clear title requirements of article III, section 23 of the Missouri Constitution. He further argued that the trial court erred in overruling his motions for judgment of acquittal and in entering judgment against him because there was insufficient evidence to support that judgment. He argued that the trial court also erred in denying his application for a continuance of the trial filed on the day of the trial, and that the trial court also erred in refusing to prevent the state from cross-examining him about the nature of his prior conviction for failure to carry workers' compensation insurance for another company in which he was involved. Mr. Salter further argued that the trial court erred in providing jury instructions other than those requested by him with respect to independent contractor status. Finally, Mr. Salter argued that the State violated the Brady rule of disclosure, which states due process is violated when the prosecutor suppresses evidence that is favorable to the defendant and material to either guilt or punishment, when Mr. Salter was unable to discover a 2003 report in the Attorney General's possession from a separate prosecution of Mr. Salter.

HOLDING: RSMo section 287.128.5 fairly relates to its title line, does not contain more than one subject, and fully apprises the public and legislature of the subject matter it contains. The trial court did not err in entering judgment against Mr. Salter because there was sufficient evidence for a reasonable juror to have found Mr. Salter guilty beyond a reasonable doubt. The trial court did not abuse its discretion in denying Mr. Salter's request for a continuance on the day of trial due to the unavailability of a witness because Mr. Salter knew about the trial date for forty days but did not contact the witness until three days before the trial. The trial court did not err in refusing to bar the State from cross-examining Mr. Salter about his prior conviction for failure to carry workers' compensation insurance. Although Mr. Salter did not testify at trial because of this ruling, so he would not be subject to impeachment, the court did not deny him of his right to testify, and he failed to show that the court's ruling resulted in manifest injustice or a miscarriage of justice. Finally, the 2003 report in possession of the Attorney General's office is not covered by the Brady rule because, at the time of his trial, Mr. Salter was already aware that this report existed. Additionally, the report's use to rebut the State's impeachment of a witness was not reasonably likely to change the outcome of the case, as other evidence supported the jury's decision, so the report was not material in the case.

Workers Compensation Fraud Conviction of Claimant Top

Sate of Missouri v. Billie Coulter, Case No. WD67730 (Mo. App. W.D. 2008).

FACTS: On January 25, 2004, Ms. Coulter slipped and fell on some ice, landing on her back and leg, causing pain in her back, right leg and neck. Ms. Coulter informed her employer that she was emptying trash, as a part of her job, when she fell. She filed a workers' compensation claim, and a doctor determined that she could not work. On January 29, 2004, Ms. Coulter began receiving TTD benefits in the amount of $180.00 per week. An MRI was performed in march that showed an annular tear and degenerative disc disease at L4-5, with a mild disc bulge. It was noted that such findings could be consistent with significant pain and disability. The claimant then began physical therapy.

On June 18, 2004, the claimant cancelled her physical therapy appointment because she was too sore. That same day, the insurance company had an investigator conducting video surveillance at the claimant's home, where she conducted a garage sale. Ms. Coulter was observed on her feet most of the day, walking unassisted, bending, and picking up items. Shortly thereafter, the claimant underwent two authorized epidural injections.


When the employer and insurer deposed the claimant approximately two months after her garage sale, on August 10, 2004, the claimant testified several times that she was unable to Astoop@ or bend at the waist, and she had been unable to do so since her injury. She also testified that she has difficulty walking without assistance before her first epidural shot. Less than one week later Ms. Coulter's benefits were terminated. She had received a total of $5,245.71 in TTD payments.

In May 2005, Ms. Coulter was charged with two counts of worker's compensation fraud for making false statements in order to obtain a benefit. Count I alleged, Aon or about August 10, 2004 . . . defendant knowingly made a false material statement for the purpose of obtaining a benefit, to wit: stating during a deposition that she was unable to bend at the waist and needed assistance to walk.@ Count II charged the claimant with knowingly making a false statement, that she was unable to walk on the treadmill, to the physical therapist for the purpose of obtaining a benefit on June 16, 2004.
Following a two-day trial, the jury found the claimant guilty of Count I, but not guilty of Count II. She was sentenced to seven days in the Buchanan County Jail.

The claimant appealed, arguing that the judge should have granted her request for a mistrial when the prosecutor, in closing arguments, made an impermissible direct and/or indirect reference to her decision not to testify, that the trial court denied her the right to confront the witnesses against her because they allowed in the notes of the physical therapist, who was not present or available for her cross examination, and claimed that the evidence was insufficient to support the verdict.

HOLDING: A mistrial is not warranted every time an improper comment, direct or indirect, is made about a defendant's failure to testify. The court admonished the jury to disregard the comment, and the Court of Appeals must assume the jury followed that instruction. The statements of the physical therapist were admissible. The physical therapist's notes were not prepared in preparation for trial or as evidence. Their primary purpose was to document treatment and therapy issues. This is especially true because the physical therapist had no prior indication, at the time the notes were prepared, that there was a likelihood of criminal prosecution. In addition, it was clear the jury did not rely on those notes because they found the claimant not guilty of Count II. Finally, the Court of Appeals found that the videotape, taken on June 18, 2004, was not too remote in time to the August 10, 2004 deposition in order for the claimant to have knowingly made false statements at that deposition in order to obtain a benefit. The claimant's arguments that the videotape should not have been admitted because it was not authenticated ignored the fact that the videotape was presented at trial by the individual who personally made the tape and was able to testify to its authenticity.

Commission Trends:Top

Over the last three months, the Commission has ruled on 47 cases and reversed or modified only six of those cases. Of those, five were changed regarding liability against the employer and insurer.


In Stephen Johnson v. Jefferson City Pubic Schools, Missouri Retailers Insurance Trust and Treasurer of Missouri as Custodian of the Second Injury Fund, Inj. No. 04-140515, the ALJ found that the claimant failed to establish the need for future medical treatment for his hip. The Commission held that a claimant does not need to show certainty but rather must show a reasonable need for future treatment. In this case, the claimant had a hip replacement with a life expectancy of 15 years. Since the claimant was a younger person, it was reasonable to expect that the hip replacement would need to be replaced.

In Jennifer Leavitt v. Borders Group, Inc., Liberty Mutual Insurance and Treasurer of Missouri as Custodian of the Second Injury Fund, Inj. No. 05-065639, the ALJ denied past and future medical treatment based upon the employer's witness. The Commission held that it found the claimant's witness more credible, therefore, it reversed the ALJ's decision and awarded future medical benefits. With regard to the past medical bills, the Commission noted that the claimant presented evidence that proved her bills were related to the cost to make her whole from her work-related injury; therefore, she was entitled to reimbursement.

In Elbert Hicks v. Wire Rope Corporation of America and Missouri Private Sector Individual Self-Insurers Guaranty Corporation Inj. No. 01-154605, the ALJ denied reimbursement of medical bills in the amount of $32,697.58. The Commission held that the claimant properly offered evidence that his bills pertained to medical treatment related to his work-related injury; therefore, he was entitled to reimbursement.

In Robert Thornsberry v. Thonsberry Investments, Inc./Lebanon Livestock Auctions, Inc. and Grinnell Mutual Reinsurance/AIG Claim Services, Inj. No. 06-004874, the ALJ awarded the claimant TTD benefits until June 2, 2006, which was when he was released from physical therapy. The Commission reversed the decision and noted that the release from physical therapy did not indicate that date was the date the claimant reached maximum medical improvement; therefore, benefits were denied.

In Tim Nolan v. DeGussa Admixtures Inc. and Ace American Insurance Company, Inj. No. 05-083237, the Commission ordered that the employer/insurer had reasonable grounds for withholding benefits and denying liability since the employee's drug test revealed that he was positive for methamphetamine and marijuana (in violation of company policy) on the day he was injured. In light of that, it reversed costs awarded by the ALJ against the employer and insurer.

MISSOURI WORKERS' COMPENSATION STATISTICS Top

Missouri Lawyers Weekly, Volume 22, Number 38, September 22, 2008, pg.4

The number of workers' compensation claims in Missouri has dropped since the 2005 amendments. Premiums for businesses have declined as well, by 2.2% in 2006 and 3.6% in 2007. Payments to injured workers declined by 3.8% from 2006 to 2006. However, the state auditor determined that injured employees may be at a disadvantage because the 2005 amendments did away with legal advisors, which the auditor stated leaves claimants either uninformed or causes them to hire an attorney.

 

Case Law Update - April 2008 - June 2008

Jurisdiction of Commission Top

John Cox, deceased, and Betty Cox v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. ED89751-01 (Mo.App. E. D. 2008).

James Winberry, Deceased, Barbara Winberry, Jacob Winberry, Joshua Winberry, Hannah Winberry, John Winberry, Heather Winberry, and James Winberry, Jr. V. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED89770-01 (Mo.App. E. D. 2008)

FACTS: In Cox, John Cox was awarded permanent and total disability benefits against the Second Injury Fund after a hearing on July 11, 2003. When Mr. Cox passed away on February 25, 2006, the Second Injury Fund ceased paying benefits. Mr. Cox's wife requested that the benefits continue, however, the Treasurer asserted that the claimant's death terminated its responsibility of payment. The Commission said that it did not have jurisdiction to hear the case.

In Winberry, James Winberry was awarded permanent and total disability benefits against the Second Injury Fund on January 7, 1998. James Winberry passed away on February 16, 2006, and payments of disability benefits ceased. On January 21, 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 his death(See our January 2007-March 2007 Quarterly). Based upon the ruling in Schoemehl, the Winberrys filed a Motion to Substitute Parties and requested the permanent and total disability payments resume. The Commission determined that it had no statutory authority to review the permanent and total disability award because it lacked jurisdiction.

In Cox and Winberry, the claimant's dependants appealed to the Court of Appeals. The Appellate Court found that the public interest and importance of the issues concerning the application of Schoemehl regarding the continuation of permanent and total disability benefits to dependents was important and transferred the cases to the Missouri Supreme Court.

Pursuant to Rule 83.02, the cases were retransferred from the Missouri Supreme Court back down to the Missouri Court of Appeals for the Eastern District to issue new opinions regarding the interpretation of Schoemehl.


The Court of Appeals noted that in general, its review is limited to what is prescribed by statute; however, it is not bound by the Commission's interpretation and application of the law. In light of that, the Court was not bound to the Commission's interpretation of whether or not the holding in Schoemehl would allow for the reinstatement of current total disability benefits for a surviving dependent.

The Court discussed the rules set forth in Schoemehl that apply when a claimant dies of causes unrelated to his work injury and is survived by dependents. In Schoemehl, the injured employee's case was still pending when he died and, although he had begun receiving TTD benefits, no final award was issued against the Second Injury Fund for permanent total disability. And, no decision was made, prior to his death, as to whether he had dependants.
HOLDING: The Court of Appeals noted that the Cox and Winberry matters were factually different than Schoemehl; thus, it opined that the new cases before it would have a different result. It held that the awards in Cox and Winberry were both final prior to the employee's death; therefore, the Commission did not have statutory authority to reopen and review those awards. In light of that, the Court affirmed the Commission's dismissal for lack of jurisdiction.

Cynthia Phelan v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. WD68023 (Mo.App. W. D. 2008)

FACTS: Cynthia Phelan filed a Second Injury Fund claim for permanent partial disability in August 2001, which was amended in March 2006 to allege permanent total disability. On July 20, 2006 Phelan received a show cause notice indicating that the Division of Workers' Compensation (Division) had placed her claim on the dismissal docket for September 15, 2006.

Phelan's counsel sent a letter to the Division, which was received on August 2, 2006, that requested removal of the case from the dismissal docket, because depositions were scheduled for October 2006 and medical evidence was still being collected. On October 19, 2006, the ALJ entered an Order to dismiss Phelan's claim for Afailure to prosecute@, which could be appealed if Application for Review was filed with the Commission in 20 days.

Notice of the dismissal was not mailed to Phelan's counsel. However, the Division mailed a copy of the Order directly to Phelan on November 20, 2006. On that same day, her counsel filed an Application for Review with the Commission asking that the dismissal Order be set aside since the Division failed to send him notice of the Order.


The Commission dismissed the Application for Review for lack of jurisdiction, because it was not timely filed within 20 days of the Division's dismissal.


The claimant challenged the Commission's decision, contending: (1) her Application for Review was timely filed because it was filed within 20 days of her counsel receiving notice of the ALJ's dismissal; and (2) that the Commission erred in dismissing her claim, because the Division provided insufficient notice of the dismissal.

The Court noted that in general an Application for Review must be filed within 20 days of dismissal and that the time period begins to run when the Commission has served notice of the ALJ's decision in accordance with the statutory procedures. There are two ways to properly send notice of a dismissal for failure to prosecute. The first option is to send notice directly to a party by certified mail. In the second option, notice must be mailed by regular mail to both the party and the party's counsel.

In this case, the Court of Appeals noted that there was no dispute Phelen's counsel did not receive notice of the dismissal Order from the Division. The question then became whether the notice that was mailed directly to Phelen was sent via certified mail.

HOLDING: Since the record did not indicate that Phelen was served notice via certified mail, the Court of Appeals held that notice was insufficient. The Court reversed and remanded the decision back to the Commission to consider the date and method of service and whether the Application for Review was timely filed.

Robert Stonecipher v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. SD28658 (Mo.App. S. D. 2008)

FACTS: The claimant was injured on the job and sought workers' compensation benefits from his employer and the Second Injury Fund (Fund). An ALJ ruled that, as a result of the accident, the claimant sustained 35% PPD, which equated to 140 weeks of compensation that were owed to him by the employer. The ALJ also found that the claimant's current and prior disabilities combined rendered him permanently and totally disabled, which resulted in liability against the Fund beginning March 19, 2003.

The ALJ's award specifically provided that beginning March 19, 2003, the employer should pay 140 weeks of PPD, at a rate of $329.42 per week, for a total of $46,118.80. The Fund was ordered to pay permanent total disability at the rate of $338.87 per week; however, for the first 140 weeks of disability, it was only liable for the difference of the PPD and PTD rates, which amounted to $9.45 per week. Beginning November 2005, the Fund would then pay the entire amount of permanent total disability of $338.87 per week.

On appeal, the Commission reduced the employer's PPD liability from 140 weeks to 40 weeks. On appeal, the Fund refused to seek relief or participate in the proceedings; however, the Commission also set aside the PPD award against the Fund and absolved it of all liability.

The claimant appealed the Commission's Award, arguing that it exceeded its power in setting aside the Fund's liability without giving the claimant appropriate notice and opportunity to be heard. In a prior decision, the Court of Appeals vacated the Commission's award that absolved the Fund of all liability and remanded the case for further proceedings.
To clear up the confusion, in a March 2007 Order, the Commission affirmed the ALJ's award of PTD benefits against the Fund. However, the March Order did not explain when those benefits were to begin and neither party appealed that order.

Subsequently, the employer paid 40 weeks of PPD and the Fund began to tender PTD benefits at the $9.45 differential rate for 140 weeks and the full $338.87 PTD rate thereafter. The claimant argued that the Fund should begin paying the full PTD rate after the employer's 40 weeks of PPD benefits ended and requested that the Commission enter an Order regarding the same. The Commission dismissed the claimant's motion for lack of jurisdiction.

The Court of Appeals noted that the Commission correctly held that the claimant requested that it enforce an award, which is a judicial function that the Commission cannot perform. However, with respect to the award, the Appeals Court found that it is the Commission's duty to rule upon every issue presented regarding the determination of liability in a workers' compensation claim.

The Court opined that liability is not fixed Auntil it is determined from whom the employee is entitled to recover.@ When the Commission entered its last final award, it was incomplete on its face, because it did not properly refer to the earlier award. In addition, the Commission's initial award adopted parts of the ALJ's award and modified others, so it became unclear what parts of the last and final award were modified.

HOLDING: The Court of Appeals remanded this case back to the Commission to state with particularity whether the Fund is required to pay PTD benefits from the date that the PPD benefits from the employer cease.


Credibility of Witnesses Top


Linda Cardwell v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Case No. ED90226 (Mo.App. E. D. 2008)

FACTS: The claimant filed two formal Claims for Compensation for injuries that she sustained, on separate occasions, after she fell at work and injured her lower back. The first injury occurred in 2001, and as a result she was referred to Dr. Scodary who performed a hemilaminotomy and discectomy to treat a right herniated disc. After that surgery, she was released to return to work without any medical restrictions.

On April 4, 2002 she reinjured her back. She continued to work until July 2003 when she underwent a second surgery, an L4-5 and L5-S1 anterior lumbar interbody fusion with BAK cages, which was performed by Dr. Scodary in July 2003. She was then released to return to work with restrictions of lifting and bending.

Almost two years later, on March 21, 2005, Dr. Scodary performed a third lumbar surgery, including an L4-5 and L5-S1 decompressive laminectomy and post-lateral fusion with stabilization screws and rods. Dr. Scodary noted that this procedure was necessary to treat pseudoarthrosis from the fusion performed in July 2003.

The claimant settled her claims with the employer and then proceeded against the Fund. At a hearing, she testified that in the time leading up to her May 2001 injury, she was working full duty without medical restrictions for any condition. She also testified that she attributed her difficulties with daily living activities such as driving a car, lifting, and going to the grocery store to her last injury of April 4, 2002.

Dr. Jerome Levy testified on behalf of the claimant and opined that she had a 20% PPD referable to her May 2001 lower back injury of which 5% was pre-existing. Following the third surgery, he opined that she had a 55% PPD of her low back of which 30% was due to the April 2002 injury. Dr. Levy's final report regarding the claimant's PPD ratings was issued on October 21, 2005.

Dr. Wayne Stillings issued a report on behalf of the claimant, which provided that the claimant had a 50% PPD due to psychiatric factors of which 25% were related to a pain disorder and 25% related to a mood disorder. In his report, Dr. Stillings opined that of those ratings, 10% were pre-existing relative to the April 4, 2002 injury.

James England also testified and provided a report on the claimant's behalf, which concluded that the claimant was permanently and totally disabled and could not compete in the open labor market due to her age, education, work experience, and medical conditions.


The ALJ issued an award finding the claimant was entitled to 21 weeks of PPD benefits from the Fund arising from the May 2001 injury. With regard to the April 4, 2002 injury, the ALJ found that the claimant was permanently and totally disabled due to a combination of her impairments and awarded lifetime benefits to begin August 23, 2009. Based upon the date of Dr. Levy's final report, the ALJ found that the claimant reached MMI on October 21, 2005 and since the employer settled his liability for 200 weeks, that placed the Fund's liability beginning August 22, 2009.

The Commission affirmed the ALJ's decision.

HOLDING: The Court of Appeals upheld the Commission's decision and addressed each of the claimant's arguments for appeal separately.

The claimant's first argument alleged that the Commission erred in finding that the May 2001 injury and her pre-existing injuries did not meet the Fund threshold. The Court disagreed with this and noted that the determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the unique province of the Commission. In determining the percentage of disability, the Commission is not bound by the percentage estimates of medical experts and it may consider all the evidence, including the testimony of the employee.

The Appeals Court noted that the Commission stated that it found the claimant generally credible with regard to her testimony that she had no pre-existing problems before the May 2001 incident. And, the Commissions finding that it did Anot think the extent of the disabilities [rose] to the levels opined by Dr. Stillings or Dr. Levy@ was a judgement call regarding the credibility of experts that the Commission was free to make.

The claimant's second argument alleged that the Commission erred with regard to the decision that she reached maximum medical improvement on October 21, 2005 from her April 2002 injury. The claimant contended that the Commission's decision was incorrect because it (1) precludes payments of PPD benefits until MMI is reached; and (2) is based upon the eligibility for TTD benefits from the employer when the claimant never received those benefits.


The Commission held that the claimant's argument was without merit. In reaching this conclusion, the Court noted that TTD benefits are due from the date of the injury occurs through the date the condition reaches the point where further progress is not expected. After reaching the point where no further progress is expected, it is then determined whether there is a permanent partial or permanent total disability. The claimant's argument that her PPD benefits should be calculated from the date of injury since she did not receive TTD benefits from her employer is without merit since the date that the benefits would normally be calculated begins once an individual reaches MMI or when TTD benefits conclude.

Her third argument stated that the date of MMI should have been March 24, 2005 instead of October 21, 2005. With regard to that argument, the Court of Appeals held that the Commission properly used the claimant's own physician's rating report to establish the date she reached MMI. The Court held that the claimant's suggestion that she reached MMI on March 24, 2005, which is three days after her third surgery, is not supported by any medical evidence and does not take into account recovery time.

The Court of Appeals upheld the Commission's decision in regard to all points on appeal.

Deann Henley v. Fairgrove R-10 School District,. Case No. SD28565 (Mo.App. S. D. 2008)

FACTS: The claimant worked as an elementary school teacher for Fairgrove R-10 School District for one school year starting in August 2001. At the start of her employment, access to her classroom was delayed due in part to water being on the floor. Once she was able to access the classroom, the claimant noted that it was Adank@ and Asmelled very mildewy.@

After teaching in her classroom for approximately two months, she began to experience difficulty breathing and reported itchy eyes, a runny nose, and a cough. The problems progressively became worse and by November 2001, she treated with her physician, Dr. Scott Ellis, for viral bronchitis. Dr. Ellis noted that his treatment had improved the claimant's symptoms, but that the problems did not go away.

In November 2001, in response to her complaints, she was removed from her classroom and placed in another room. The employer conducted air-quality testing, on five occasions, which revealed no indication of active fungal amplification.

On July 1, 2002 she filed a formal Claim for Compensation, and at a hearing before an ALJ, the employer submitted deposition testimony from Dr. Gerald Kerby. In his report, Dr. Kerby noted that the air samples taken from the school indicated that the levels found inside the building were lower than levels of similar mold detected in the outside air. He further stated that the claimant's skin tests were negative for the presence of mold antibodies and that her chest x-rays were normal, which led him to believe that she Aprobably had an acute inflammatory bronchitis in 2001 which was most likely viral in nature.@


Dr. Oscar Schwartz testified via deposition on behalf of the claimant. In response to the claimant's complaints, Dr. Schwartz recommended an allergic bronchopulmonary aspergillosis panel in order to detect any reaction to fungi, such as respiratory problems. In this test, the doctor noted the claimant was allergic to Aspergillus niger, which he admitted was a Avery common@ mold associated with the decomposition of organic material such as plants and paper.

After all the evidence was presented, the ALJ found that the claimant's condition was not compensable and denied benefits. On appeal, the Commission affirmed the ALJ's decision. From that, the claimant appeals arguing that the Commission erred by holding that her mold allergy was due to exposure to mold outside the classroom when there existed no evidence indicating anything other than occupational exposure.

The Appeals Court noted that in order to support an award in a claimant's favor, a medical expert in an occupational disease case must establish (1) the probability that the disease was caused by conditions in the work place; and (2) a direct causal connection between the conditions under which the work is performed and the occupational disease.

The Appeals Court held that the Commission is the ultimate trier of fact and with regard to causation and work-relatedness, the question of fact is solely for the Commission's determination. To determine whether the claimant's condition is the result of hazards of everyday life or to a risk or hazard inherent in her work depended upon the acceptance or rejection of conflicting medical opinions or theories, and therefore it is the duty of the Commission to either accept or reject those opinions.

In its decision, the Commission noted that the claimant's argument failed because her own expert, Dr. Schwartz, stated that that Aspergillus niger is a Avery common mold@ and that finding was confirmed by the employer's expert, Dr. Kerby, who testified that AAspergillus niger is a ubiquitous fungus, it's everywhere.@

HOLDING: The Appeals Court held that the Commission properly concluded that Dr. Kerby's testimony was more credible and consistent with the entire medical testimony and the environmental air samples; therefore, it was supported by competent and substantial evidence and was affirmed.


Jackie Lingerfelt v. Elite Logistics, Inc., and Treasurer of the State of Missouri, as Custodian of Second Injury Fund, Case No. SD28506 (Mo.App. S. D. 2008)


FACTS: On May 19, 2001, the claimant was operating a one person vehicle used to move trailers around a warehouse facility when he ran over a 3 foot by 15" deep hole causing him to bounce out his seat and hit his head on the top of the vehicle, which jammed his neck and back. He was able to finish his shift that day. On June 9, 2001, he informed his employer that he could not continue to work due to his injuries from that incident.

He subsequently underwent a cervical discectomy and arthrodesis at C5-6 and C6-7 and bone grafting and plating from C5 to C7, which was performed by Dr. Ceola on November 9, 2001. After the surgery, the claimant indicated that he experienced almost 100% improvement in the pain in his neck, however, he did note a fair amount of muscle spasm in that area.

On December 11, 2001, the claimant saw Dr. Ceola for a routine follow-up and noted that he developed stroke like symptoms approximately two weeks following the surgery. In light of that, he was referred to a neurologist, Dr. Wong.

Dr. Wong examined the claimant on January 18, 2002 and concluded that his symptoms were the result of small vessel strokes related to his pre-existing heart condition, which was a patent foramen ovale and paroxysmal atrial fibrillation. In his report, Dr. Wong stated that it was with reasonable certainty that the claimant's May 19, 2001 accident and cervical surgery were not related to the multiple strokes and resulting symptoms, since the hole in the claimant's heart had most likely been present since birth.

The ALJ found that the claimant's cervical condition was work related but not the stroke symptoms. In reaching that conclusion, the ALJ noted that the opinions of Drs. Ceola and Schwartz confirmed those of Dr. Wong and were more credible than the claimant's testimony and therefore gave them more weight.

On appeal, the Commission adopted the findings of the ALJ and awarded compensation against the employer for 20% of the body as a whole, referable to the claimant's cervical injury. With respect to the claim against the Second Injury Fund, the Commission found that it was not liable because the claimant testified that he was in good health prior to the date of his injury and that his pre-existing conditions of pain, depression, Hepatitis and his heart problems were not symptomatic prior to that time.

From that, the claimant appeals the Commission's decision to deny his request for permanent total disability benefits against the Second Injury Fund.


HOLDING: The claimant's first argument stated that the Commission erred in determining he did not have pre-existing disabilities, which would meet the threshold for Fund liability. The claimant stated that the Commission did not consider his testimony to make its decision; however, the Appeals Court noted that this argument failed to consider all the medical testimony presented and only relied upon a few brief portions that appeared favorable to his claim. The Court opined that the issue is one of credibility and that the weight to be given to each witness rests with the Commission alone.

The claimant's second argument alleges that the Commission erred in finding that there was no causal connection between the claimant's stroke and his lumbar spine condition. To support his argument, the claimant relies upon the physicians notes that described his sensitivity to medications that he received during surgery. Again, the Court noted that the Commission based its findings on the medical opinions of Drs. Ceola, Wong, and Schwartz. The Court held that the findings were based upon competent and substantial evidence of the whole record and denied the claimant's second point of appeal.

With regard to the claimant's third point, he argued that the Commission erred by not finding that the claimant was permanently and totally disabled as a result of the stroke. Again, point three was denied because the Court held that the Commission found that the medical testimony from Drs. Ceola, Wong and Schwartz were ultimately more credible, and therefore the decision was supported by substantial and competent evidence of the whole record.

John Richardson v. Missouri State Treasurer, Custodian of the Second Injury Fund, Case No. ED90619 (Mo.App. E. D. 2008)

FACTS: The claimant filed a Claim for Compensation alleging injuries to his neck, cervical spine, shoulders, thoracic spine, arms, hands, low back, knees and feet. The claim against the employer was settled and a hearing was held before an ALJ regarding Second Injury Fund liability.

The ALJ found that the claimant failed to Apersuade@ that the combination of his pre-existing disability and his last injury rendered him unemployable on the open labor market; therefore, his claim against the Fund was denied. On appeal, the Commission affirmed the ALJ's award, noting that it was supported by competent and substantial evidence.

From that, the claimant appeals, arguing the ALJ completely disregarded the opinion of his expert, Mr. England, because it was Aflawed.@


The claimant's argument states that his case is nearly identical to Highley v. Von Weise Gear, 247 SW3d 52 (Mo.App. 2008), where the Commission found that the fund was not liable for PTD based upon the uncontradicted testimony of Mr. England. (See January 2008-March 2008 Quarterly). The Appeals Court disagreed with the factual similarities between the claimant's case and those presented in Highley. The Court noted that in Highley, Mr. England's opinion regarding PTD was uncontradicted. However, in the case at bar, there were several conflicting opinions with regard to whether the claimant was capable of employment.

In addition, although the Commission did determine that Mr. England's opinion was Aflawed to the extent that it fails to take into consideration all of the expert medical opinions in the matter related to work restrictions@, this Court held that the Commission did not completely disregard Mr. England's testimony in making its decision.

HOLDING: The Appeals Court held that the Commission properly commented upon the credibility of Mr. England's testimony and opinion and was free to reject that opinion in favor of those from the other testifying doctors and witnesses.

Idiopathic Injuries Top

Gary Ahern v. P&H, LLC and American Family Mutual Insurance Company, Case No. ED90314 (Mo.App. E D. 2008)

FACTS: In February 2006, the claimant fell from a roof while working as a carpenter and injured his shoulder. The claimant alleged that his fall was due to a seizure caused by a prior motor vehicle accident. In a hearing before an ALJ, the claimant's claim was denied because the injury resulted directly or indirectly from an idiopathic cause. The Commission affirmed the ALJ's award, and from that, the claimant appeals.

In his first point of appeal, the claimant argues that the Commission erred in defining Aidiopathic@ to mean Apeculiar to the individual, innate@ because the Commission relied on abrogated case law for the definition. He further argued that the correct definition for Aidiopathic@ is a dictionary definition that states Aother disease or injury whose cause is unknown.@

The Court of Appeals disagreed with the claimant's first argument and noted that in 2005, the Legislature amended RSMo ' 287.020.3,which deals with definitions, by adding subsection (3) that reads, Aan injury resulting directly or indirectly from idiopathic causes is not compensable.@ In addition, the Legislature further amended RSMo ' 287.020 by adding Ait is the intent of the Legislature to reject and abrogate earlier case law interpretations on the meaning or definition of >accident', >occupational disease', >arising out of', and >in the course of employment' . . .@


The claimant then argued that the Commission erred in relying on Alexander v. D.L. Sutton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993) for its definition of Aidiopathic.@ To support this argument, he stated that RSMo ' 287.020 abrogated Alexander; therefore, the definition of idiopathic was abrogated as well.

In response to this argument, the Court of Appeals held that the definition of idiopathic has traditionally been defined through case law and unless a statute clearly abrogates common law by express statement or implication then the common law would stand. Upon review, RSMo ' 287.020 neither expressly nor implicitly abrogates either case law interpretations of the definition of idiopathic; therefore, the Commission did not err in using this definition.

In his next point, the claimant suggests that the Commission erred in applying
RSMo ' 287.020.3(3), because the statute specifically states that A[a]n injury resulting directly or indirectly from idiopathic causes is not compensable. The claimant basically argues that the injury must result from multiple idiopathic causes, not just one, before it is not considered compensable. The Appeals Court held that it interprets the Section to indicate that there are a vast number of idiopathic causes that exists, any one of which would render a resultant injury non compensable. Therefore, that point was denied.

Then the claimant argued that the Commission erred in applying RSMo ' 287.020.3(3), because a causal connection existed between the claimant's injury and his work since his work place contributed to an increased risk of the accident. The claimant further stated that the facts of his case were similar to those found in Alexander v. D.L. Sutton Motor Lines, 851 S.W.2d 525 (Mo. banc 1993), wherein the employee became dizzy and fell from a raised platform on which he was required to work. The Court held that the definition of Aarising out of@ as set forth in Alexander would not apply, because the Legislature's 2005 amendment of Section 287.020 rejected earlier case law defining Aarising out of@.

The claimant then argued that the Commission erred in defining idiopathic, because it resulted in a conflict between RSMo ' 287.020 and the American Disabilities Act. The Court of Appeals dismissed this argument and held that the claimant failed to show that the denial of compensation for injuries related to idiopathic causes is more likely than not due to a disability. To the contrary, the Court noted that the decision to award compensation based on an injury's relation to an idiopathic, or innate, cause is, instead, a question of causation. Accordingly, denying causation when the claimant's injury results directly or indirectly from idiopathic causes did not violate the ADA.


The claimant's next argument stated that the Commission erred in defining idiopathic, because the definition rendered RSMo ' 287.020 in violation of the Open Court's provision of the Missouri Constitution. The Appeals Court noted that the Open Court's provision prohibits any law that unreasonably or arbitrarily bars individuals and classes of individuals from accessing the Courts in order to enforce recognizable causes of action. Since the claimant was not barred from enforcing a recognized cause of action, the Commission's definition of an idiopathic did not violate the open Court's provision.

In his final point, the claimant asserted that the Commission erred in defining idiopathic because such definition would violate the equal protection clause of the United States and Missouri Constitutions. In reaching its decision, the Appeals Court noted that the purpose of the workers' compensation act is to place upon the employer the losses sustained by employees resulting from injuries Aarising out of and in the course of employment.@ Injuries resulting directly or indirectly from idiopathic conditions are not wholly work-related.

The Court noted that the State has a legitimate interest in making sure that employees are compensated for work related injuries. In light of that, it is acceptable to distinguish between those injuries that are idiopathic (and unrelated to work) and those that are strictly work related. The claimant's final point was denied.

HOLDING: Affirmed. The claimant's injuries resulted from an idiopathic cause and are not compensable.

Arising out of Employment Top

Timothy Miles v. Lear Corporation, and Zurich North America Insurance Company, Case No ED89961 (Mo.App. E. D. 2008)

FACTS: The claimant was hired as a union employee at Lear's Wentzville plant in February 2000. The collective bargaining agreement provided for one 30 minute unpaid break, during which employees were free to leave the premises, and two 15 minute paid breaks during which they were required to remain on site in order to resume work promptly. While on breaks, some employees and managers often played basketball on a court that was located just outside the building, but on Lear property. On February 19, 2004, Miles injured his knee while playing basketball during a paid break.

The Commission concluded that Miles' injury was compensable because (1) it arose out of and in the course of his employment and the basketball games were the regular incident of employment; and (2) although Miles was engaged in a voluntary recreational activity for which benefits are generally forfeited, his injury fell within an exception to that rule because he was paid while participating.



The Court of Appeals noted that RSMo ' 287.120.1 holds an employer liable, regardless of fault, when an employee sustains an injury Aarising out of and in the course of his employment.@ An injury arises out of employment if it is a Anatural and reasonable incident thereof.@ When an employee sustains an injury during participation of a recreational activity, benefits are payable when the employee is paid compensation while participating in the activity.

HOLDING: Affirmed. the Appeals Court held that since the claimant's injury occurred during his paid 15 minute break, it was therefore compensable.

COMMISSION TRENDS Top

Over the last three months, the Commission has ruled on 30 cases and reversed or modified only seven of those cases. Of those seven cases, only five were changed regarding liability against the employer and insurer.

In Roger Bock v. City of Columbia, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 05-072941, the Commission determined that the employee failed to offer medical evidence expert testimony with regard to the nature and extent of his disability; therefore, the ALJ's award was reversed and compensation was denied.

In Norman Heiskell v. Golden City Foundry, Inc., c/o Travelers Casualty & Surety, Inj. No. 03-144610, the Commission determined that the employee failed to prove that the pulmonary embolism that he sustained was caused by his work; therefore, the ALJ's award was reversed and benefits were denied.

The Commission modified the ALJ's award in Elbert Hicks v. Wire Rope Corporation of America, c/o Missouri Private Sector Individual Self-Insurers Guaranty Corporation, Inj. No. 01-154605. The Commission determined that the award should have included benefits for past medical care in the amount of $32,697.58.

The Commission modified a temporary award in Mark McCulloch v. Tasco Construction c/o Transportation Insurance Company, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 02-111874. The Commission affirmed all findings and conclusions of the Administrative Law Judge except for its analysis and award concerning temporary total disability owed to the employee. In its review, the Commission noted that it could not reconcile the totals that the ALJ arrived at with regard to the TTD benefits. In light of that, it reviewed the proposed award and stated that the employee should have received TTD benefits from October 16, 2002 through April 14, 2005.


In Floyd L. Wilcut, deceased and Sharon Wilcut, widow v. Innovating Warehousing, c/o American Manufacturers Mutual Insurance Company, Inj. No. 00-041020, the Commission issued an Order in accordance with the Missouri Court of Appeals for the Eastern District's opinion that was delivered on January 15, 2008. The Commission directed the employer/insurer to pay Sharon Wilcut, widow, death benefits in the amount of $292.04, commencing May 1, 2002 and continuing until Sharon Wilcut loses her status as dependent under Section 287.240.

 

Case Law Update - January 2008 - March 2008

Jurisdiction of Commission Top

Lois Nolan v. Degussa Admixtures, Inc., Case No. SD28647 (Mo. App. S.D. 2008).

FACTS: Timothy Nolan was involved in a car accident in July 2005 while driving a company pick up truck for his employer. A clinical drug test was performed immediately after the accident, which revealed that Mr. Nolan tested positive for methamphetamine. Mr. Nolan lived for approximately three months after the accident, but ultimately passed away as a result of the injuries that he sustained. Subsequently, the employer denied benefits and the employee's surviving spouse filed a claim with the Division of Workers' Compensation.

At an October 2006 hearing, the ALJ found the employer's denial of benefits unreasonable and ordered costs to the claimant's attorney in the amount of $10,684.80. The employer sought review by the Commission, but did not specifically challenge the ALJ's award of costs. The Commission reversed the ALJ's award of costs, and from that, the claimant challenges the Commission's jurisdiction on appeal.

If a party defends a case without reasonable grounds it may be assessed the Awhole cost@ of that litigation. The Court of Appeals noted that the employer never challenged the ALJ's reasons for awarding costs in this case. The court discussed its recent decision in Stonecipher v. Poplar Bluff R1 School District, 205 S. W. 3rd 326, 332 (Mo. App. 2006), where it held that if a Commission considered non-appealed matters it must do so with adequate notice to the parties.

HOLDING: The Court of Appeals held that the record was insufficient to determine if the parties had adequate notice before the Commission reversed the award of costs. Since the court was unable to tell whether due process was met, it remanded the case to the Commission to address the notice and due process issues.

Daniel Mell v. Biebel Brothers, Inc., Case No. ED89404 (Mo. App. E.D. 2008).

FACTS: The claimant, Daniel Mell, sustained three work related back injuries and subsequently underwent surgery for each injury. At a hearing before an ALJ, the claimant's request for future medical benefits with respect to each prior injury was denied. The claimant filed an Application for Review with the Commission, which did not raise the issue of future medical benefits. The Commission reversed the ALJ's ruling and granted the claimant future medical benefits.

HOLDING: The Court of Appeals held that the Commission denied the employer its right to due process by deciding the non-appealed issue of future medical benefits without first providing notice to the parties.

Calculation of Average Weekly Wage Top

David Murphy v. Barbeque Wood Flavors, Inc., and the Treasurer of the State of Missouri, Custodian, Second Injury Fund, Case No. SD28466 (Mo. App. S.D. 2008)

FACTS: David Murphy was hired to perform maintenance on machinery used in the employer's manufacturing plant at a rate of $9.00 per hour. The claimant did not have a set work schedule, rather he was Aon call@ seven days a week. During his second day of work, the claimant suffered injuries when he tripped and fell.

In a Division hearing before an administrative law judge, the claimant testified that his employer agreed to discuss Abigger money@ if the company was satisfied with the claimant's job performance after the first week. Since the claimant only worked two days, the ALJ determined the claimant's average weekly wage based upon RSMo 287.250.1 (4), which states that if the employee's wages are Afixed@ by day or hour then the average weekly wage is computed by dividing the amount earned each week by the number of weeks the employee was employed.

Based upon the evidence that the claimant was receiving $9.00 per hour, the ALJ decided that it was reasonable to assume a 40 hour work week; therefore the two numbers were multiplied and the average weekly wage was determined to be $360.00. The ALJ subsequently ordered the Second Injury Fund (AFund@) to pay permanent total disability benefits in the amount of $240.00 per week for the claimant's lifetime.

The Fund appealed to the Commission and argued that RSMo 287.250.1(5) should have been applied.
The Commission disagreed and reasoned that RSMo 287.250.1(5) applies only if the employer and employee fail to establish a fixed hourly wage. The Commission concluded that the parties had agreed to a fixed hourly wage of $9.00; therefore, RSMo 287.25.1(5) was inapplicable.

The claimant's appeal argues that the Commission erred in not applying RSMo 287.250.1(5) to determine the correct rate of pay for the purposes of calculating the claimant's average weekly wage.

HOLDING: The Court of Appeals held that RSMo 287.250.1(5) does not apply to determine the claimant's average weekly wage, because the employer had agreed to a certain hourly wage. The Court found that the Commission's determination was supported by competent and substantial evidence. The Commission's Decision was affirmed.

Award of Future Medical Benefits Top

Linda Stevens v. Citizens Memorial Healthcare Foundation, Case No. SD28457 (Mo. App. S.D. 2008).


FACTS: The claimant injured her left knee while working as a certified nurse's aid for Citizens Memorial Healthcare Foundation. As a result of her injury, the claimant underwent arthroscopic surgery on her left knee and a total knee replacement. The claimant's doctor opined that the life expectancy of the knee prosthetic was approximately 20 years and if the claimant lived beyond that point there was a good chance that she would need another knee replacement in the future.

At a hearing before an Administrative Law Judge, the claimant was awarded future medical care. The Commission adopted and affirmed the ALJ's Award.

The employer appealed the Commission's decision arguing that there was not sufficient evidence to support the Award of future medical treatment.

The Court of Appeals noted that the claimant is not required to prove Aconclusive evidence@ of a need for future medical treatment, but that the claimant need only show a Areasonable probability@ that future medical treatment is necessary.

HOLDING: The Court of Appeals held that the claimant presented sufficient and competent evidence upon which the Commission could base their award of future medical treatment by presenting her treating physician's deposition testimony. Therefore, the Court of Appeals denied the claimant's Appeal.

Application of Drug Penalty Top

Lois Nolan v. Degussa Admixtures, Inc., Case No. SD28647 (Mo. App. S.D. 2008).

FACTS: Timothy Nolan was involved in a car accident in July 2005 while driving a company pick up truck for his employer. A clinical drug test was performed immediately after the accident, which revealed that Mr. Nolan was positive for methamphetamine. Mr. Nolan lived for approximately three months after the accident, but ultimately passed away as a result of the injuries that he sustained. Subsequently, the employer denied benefits and the employee's surviving spouse filed a claim with the Division of Workers' Compensation.

At an October 2006 hearing, an administrative law judge reduced the claimant's death and disability benefits by 15% as a penalty for the drug violation. The claimant sought review, but the Commission upheld the ALJ's award.

The claimant appealed the Commission's decision and challenges the following four points on appeal: (1) that the Commission Aerred as a matter of law ... because forensic drug test and forensic chain of custody are required as a matter of law of admissibility@; (2) that a positive drug test by itself did not prove a violation of the employer's drug policy; (3) the evidence was insufficient to prove that the employee was injured Ain conjunction@ with drug use; and (4) it is against public policy to reduce Missouri Workers' Compensation benefits.

HOLDING: The Court of Appeals affirmed the Commission's decision and discussed each of the

claimant's four points on appeal. The Court rejected the claimant's first argument that forensic test and forensic legal chain of custody requirements must be met before drug test results are admissible before the Workers' Compensation Division. The Court reasoned that chain of custody requirement in a civil matter is no different than a criminal case, and noted in criminal matters the court is free to use discretion to determine it Areasonable assurance@ was met with regard to chain of custody.

The Court then rejected the claimant's second argument that a positive drug test did not indicate that the claimant violated his employer's drug policy. The Court noted that the evidence presented at the hearing showed the claimant was under the influence of methamphetamine, and that the claimant's argument ignores those findings.

The Claimant's third argument suggested that the evidence was insufficient to prove that the claimant was injured Ain conjunction@ with drug use. With regard to that argument, the Court noted that RSMo 287.120.6(1), which provides for the application of a drug penalty, did not specifically define the term Ain conjunction@. The Court consulted a standard dictionary and concluded that the term Ain conjunction@ meant to co-exist in time and place. Therefore, it rejected the claimant's argument since the evidence presented at the Division hearing showed that the claimant was positive for drugs at that time he was injured in an accident.

Lastly, the Court rejected the claimant's final argument that a drug penalty reduction in Workers' Compensation benefits has a chilling effect on medical care and treatment, because the claimant failed to support authority for her argument and the Court noted that the issue is a matter of public policy that is better addressed by the General Assembly.

Credibility of Witnesses Top

Debra K. Highley v. Von Weise Gear, Case No. ED90160 (Mo. App. E.D. 2008).

FACTS: Debra Highley performed various hand intensive jobs while she was employed with Von Weise Gear (AVWG@). Ultimately, she was diagnosed with carpal tunnel syndrome and from 1994 to 1996 she underwent seven corrective surgeries. After her surgeries, Highley continued to work with VWG, until 2003 when she was diagnosed with carpal tunnel, tarsal tunnel and multiple sclerosis.

The claim against the employer was settled and a hearing was against the Second Injury Fund with regard to the claimant's allegations of permanent total disability. The claimant produced the deposition of Mr. Robert Margolis, a neurologist, at the hearing. Dr. Margolis ultimately opined that based on the claimant's medical injuries he considered her permanently and totally disabled. Dr. Margolis further stated that the pre-existing conditions combined with her primary work related injury to create a greater overall disability.
The deposition of Mr. James England, Jr., a rehabilitation counselor, was also produced at the hearing. Mr. England testified that he reviewed the claimant's deposition testimony, prior work history, and medical history before he opined that the claimant was Atotally disabled from a vocational standpoint.@ Both experts' opinions were unimpeached and uncontradicted during the hearing.

The ALJ determined that the claimant's two expert witnesses did not consider the claimant's entire work history and concluded that their opinions were flawed. The ALJ found that the claimant was not permanently and totally disabled; thus, it rendered the issue of the applicable rate of permanent and total disability moot.

The Commission adopted and affirmed the ALJ's Award. In the claimant's appeal, she argues that the Commission's decision was not supported by substantial and competent evidence.

HOLDING: The Court of Appeals held that the Commission's decision was not supported by substantial and competent evidence; therefore, the decision was reversed and remanded with directions to enter a new award that found the claimants permanently and totally disabled.

The Court noted that there are two separate standards regarding a reviewing court's deference to a prior court's witness credibility determination. The Court stated that in general, the Commission is free to disbelieve uncontradicted or unimpeached evidence. The Court discussed Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525 (Mo.banc 1993), which held that a prior court's decision was free to reject the testimony of a particular witness, but that the court's record must specifically state that its decision was based upon the conclusion that it found in favor of differing testimony.

The Appeals Court further noted that a different standard applied when the Commission's decision fails to state that it is based upon the belief or disbelief of the testimony of the witnesses. In Corp v. Joplin Cement Co., 337 S.W.2d 252 (Mo. Banc 1996), the court held that when the record is silent with regard to the court's determination of witnesses' credibility then the Commission is not free to reject unimpeached and uncontradicted testimony.

To reach its conclusion in Highley's case, the Court of Appeals noted that the Commission's reasoning did not conclude that it disbelieved the testimony or credibility of either expert. Instead, the Commission merely stated that the experts' opinions were Aflawed@ and completely rejected the witnesses testimony altogether. The Appeals Court applied the Corp standard and reasoned that the Commission was not free to reject the testimony of unimpeached and uncontradicted witnesses; therefore, the evidence presented was sufficient to find that the claimant was permanently and totally disabled.

Extent of Claimant's Disability Top

Daniel Mell v. Biebel Brothers, Inc., Case No. ED89404 (Mo. App. E.D. 2008)

FACTS: The claimant, Daniel Mell, worked for Biebel Brothers (ABB@) as a roofer. In June 1999 the claimant injured his back and subsequently filed a claim, which was settled for 20% PPD of the body as a whole related to the back.

On July 27, 2001, the claimant sustained another back injury for which he filed a second claim for compensation. On January 9, 2002 the claimant sustained a third back injury and filed a third claim for compensation as a result of that injury.

At a hearing before an administrative law judge, the claimant produced expert testimony from Drs. Petkovich and Dr. Volarich. Dr. Petkovich opined that the claimant had a 10% PPD of the body as a whole with regard to his first claim, and a 10% PPD of the body as a whole with regard to his second claim, and a 23% PPD of the body as a whole with regard to his third claim. Dr. Volarich did not assess a PPD rate with regard to the claimant's first claim, but assessed a 30% PPD of the body as a whole related to the second claim and a 45% PPD of the body as a whole related to the third claim.

The claimant then produced testimony of Mr. James England, a rehabilitation counselor, who opined that based upon Dr. Petkovich's medical restrictions the claimant would be capable of performing limited assembly or packing positions. However, Mr. England ultimately determined that the claimant was unemployable due to the combination of his learning disability, his pre-existing conditions, and the third back injury that occurred on January 9, 2002.

With respect to the second claim, the ALJ assessed 45% PPD of the body as a whole, related to the low back. The ALJ broke this amount down, and assessed 20% PPD with regard to the claimant's first back claim, and for the second claim assessed 20% PPD to the employer and 5% PPD to the Second Injury Fund (AFund@).

With regard to the claimant's third claim, the ALJ found a 82.5% PPD of the body as a whole, related to the low back. The ALJ took a 45% PPD credit from the claimant's second claim and assessed 27.5% PPD to the employer and 10% PPD to the Fund for the third claim.

The claimant requested review of the ALJ's decision regarding the extent of the claimant's disability. The Commission affirmed the ALJ's decision. Subsequently, the claimant filed an appeal with the Court of Appeals arguing that there was substantial evidence to show that he was permanently and totally disabled and that the percentages of disability were incorrect.

HOLDING: The Court of Appeals affirmed the Commission's decision that the claimant was not permanently and totally disabled.

The Court reasoned that, the claimant's experts gave varying opinions that the Commission weighed to reach it's decision. The Court noted that Dr. Petkovich testified that the claimant could return to light duty work, with certain restrictions; however, Dr. Volarich merely deferred his opinion to the vocational expert, Mr. England. And, Mr. England opined that based upon Dr. Petkovich's medical restrictions the claimant would be capable of performing limited assembly or packing positions.

The Court of Appeals noted that the claimant bears the burden of establishing permanent and total disability. And in this case, the claimant's two medical experts failed to specifically opine that claimant was totally disabled; therefore, it is within the Commission's discretion to weigh the differing witnesses' opinions and make a decision.

The Court noted that it is within the Commission's discretion to determine the credibility of each expert witness's opinion and to weigh that opinion accordingly. The Court found that there was substantial and competent evidence for the Commission to determine that Dr. Petkovich's opinion was more credible and that the claimant was not permanently or totally disabled.

Commission Trends Top

Over the last three months, the Commission has ruled on 47 cases and reversed or modified only seven of those cases. Of those, six were changed regarding liability against the employer and insurer.

In Clifford L. Conrad v. Jack Cooper Transport, Liberty Mutual Insurance Co., and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 04-061506, the Commission determined that the ALJ's award of future medical care and treatment was not supported by the evidence, because the medical testimony clearly established that the claimant's ongoing need for medical care was the direct result of a pre-existing degenerative condition and not the claimant's work-related injury.

In Richard A. Jones v. GST Steel Company, GS Technologies Operating Company, Inj. No. 01-168328, the Commission reversed the decision of the ALJ and determined that the employer is not liable to pay benefits as the employee did not file a proof of claim with the bankruptcy court as required under section 287.865.5 in the Missouri Revised Statutes.

In William Kempker v. ABBT & D, Self-Insured c/o Gallagher Bassett, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 01-014020, the Commission issued a new award, in accord with the Missouri Court of Appeals Western District Opinion, that the employer is responsible for payment of future medical benefits to cure employee from the effects of his injury.

In Georgia Ratchford v. Price Chopper, American & Foreign Insurance Company, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 02-146112, the Commission determined that the award should not have been a final award, but rather a temporary or partial award, because all of the issues had not been resolved.

In Rusty Sprouse v. Superior Asphalt Company, ACIG Insurance Company, Inj. No. 04-105870, the Commission determined that the employer had reasonable grounds to defend the claim since the employee's testimony and the medical records differed with regard to when the work accident occurred. Therefore, the Commission reversed the ALJ's decision to award costs and attorney's fees to the claimant's attorney.

In Ricky Tharp v. Pepsi Bottling Group Inc, Old Republic Insurance Company, and Treasurer of Missouri, as Custodian of the Second Injury Fund, Inj. No. 04-141812, the Commission determined that the employee did not present sufficient evidence to prove that there was an injury that occurred while at work. Therefore, the employee was not entitled to compensation.

 

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