Case
Law Update - October 2009 - December 2009
Exclusive
Jurisdiction Top
J. Michael McCracken v. Wal-Mart Stores East, LP,
Case No. SC90050 (Mo. 2009) (en banc).
FACTS: The claimant was an employee of Interstate
Brands Corporation (IBC). Wal-Mart contracted with IBC for the purchase and
delivery of bread products. The claimant’s
duties included delivering racks of bread to Wal-Mart and picking up empty
racks from the store.
In November 2004 the claimant was injured when he was struck
in the shoulder by an empty bread rack while delivering to the Wal-Mart in
Neosho, Missouri. The claimant filed and
settled a worker’s compensation claim with IBC based on this injury.
The claimant then filed a personal injury lawsuit against
Wal-Mart, alleging that he had incurred the shoulder injury because of the
negligence of a Wal-Mart employee. Three years later, on the day before a trial
was to begin, Wal-Mart filed a motion to dismiss for lack of subject matter
jurisdiction, alleging that the claimant was a statutory employee of Wal-Mart
and the Commission had exclusive jurisdiction.
The Circuit Court dismissed the action for lack of subject matter
jurisdiction because it found the claimant was a statutory employee.
HOLDING: If an employer wants a case dismissed from a
Circuit Court because the Commission has exclusive jurisdiction, it must raise
the issue in the Circuit Court in a timely manner or else lose the defense of
exclusive jurisdiction. This case should not have been dismissed because
Wal-Mart raised the defense too late. Due to the confusion regarding this
matter, the Court determined that this would be a prospective rule that will
affect cases after McCracken. The Court
also ruled that the claimant was not a statutory employee in this case because
the work he did was not in the “usual course” of Wal-Mart’s business.
Commission
Authority Top
Joseph Banks v. Clint Zweifel, Treasurer of the State
of Missouri, Custodian of the Second Injury Fund, Case No. SC90131 (Mo.
2009) (en banc).
FACTS: The claimant was injured in a work related
auto accident. He sued the driver of the
other vehicle and received $54,903.48 of a $100,000 settlement after attorney
fees and costs.
Subsequently, an administrative law judge determined that
the claimant was entitled to permanent total disability benefits from the
Second Injury Fund. However, the
Commission did not award the SIF a subrogation interest in the claimant’s
settlement.
The SIF appealed and argued that the Circuit Court, not the
Commission, had authority to determine the SIF’s subrogation interest because
the right to subrogation is from the common law and not from the workers’
compensation statute.
HOLDING: The Commission is an administrative tribunal
with authority to determine questions of fact and to apply provisions of law
under the workers’ compensation act. The
SIF’s common law subrogation interest does not arise out of the workers’
compensation act so the Commission has no authority to determine the SIF’s
common law subrogation interest. The
Circuit Court is the proper venue for the SIF to assert a subrogation interest.
Schoemehl Top
Tina Roller v. Sarah Steelman, Treasurer of the State
of Missouri, as Custodian of the Second Injury Fund, Case No. WD69720 (Mo.
App. W.D. 2009).
FACTS: The claimant suffered an on the job injury in
May 1998 and subsequently was awarded permanent total disability benefits from
the Second Injury fund on April 1, 2003.
The SIF paid weekly disability benefits until the claimant died of
causes unrelated to the work injury on May 24, 2007.
In June 2007, the claimant’s wife sent a letter to the SIF
requesting that the disability payments continue to be sent to her because of
the Schoemehl decision which required the total disability payments to
be paid to dependents when the claimant dies of causes unrelated to the work
injury.
The SIF responded that the ALJ’s award had not provided for
any benefits to the claimant’s dependants and was a final judgment. The claimant’s wife filed a suit in civil
court to force the SIF to continue the benefits and the SIF filed a motion to
dismiss.
HOLDING: Schoemehl has been limited by
subsequent changes in the workers’ compensation statute. A recent decision, Strait v. Treasurer,
which can be found in our July 2008 - September 2008 Case Law Update, has clarified that if the workers’
compensation claim is no longer pending, Schoemehl does not apply. Another case, Bennett v. Treasurer, which
can be found in our October 2008-December 2008 Case Law Update, limited Schoemehl
to claims pending between January 9, 2007 and June 26, 2008. Since the claimant’s award had been final in
2003, Schoemehl did not apply and the Circuit Court did not have statutory
authority to re-open or modify the final award.
Permanent
Partial Disability BenefitsTop
Carl Cantrell, deceased, Kim Cantrell, widow, v.
Baldwin Transportation, Inc. and Cherokee Insurance Company and Treasurer of
Missouri as Custodian of Second Injury Fund, Case No. SD 29642 (Mo. App.
S.D. 2009).
FACTS: The claimant fell and injured his left
shoulder and wrist while working for Employer in December 2006 and died of
unrelated causes in July 2007. The claimant’s widow timely filed a claim for
disability benefits.
The Commission found that before the claimant died, his
doctor had recommended surgery for the occupational injuries, that the claimant
was still being treated, and that the claimant had not reached MMI.
The claimant’s wife alleged that a finding of permanent
partial disability was supported by the medical testimony. However, the Commission chose to disregard
the disability ratings provided by the claimant’s wife because the Commission
felt the ratings were speculative.
The claimant’s wife also argued that the claimant reached
MMI as a matter of law because he reasonably and voluntarily terminated further
treatment. In addition, the doctor
stopped treating the claimant because he was not a candidate for surgery, the
claimant received no further treatment, and the claimant’s death rendered it
impossible to improve any farther.
HOLDING: Section 287.230.1 provides that upon the
death of an employee due to causes unrelated to work accident, dependants will
receive “any accrued and unpaid compensation.”
The term accrued is not defined, so it is given its plain meaning. The claimant’s right to permanent partial
disability had to have existed as a matter of fact prior to his death. No such benefits had accrued because the
claimant had not reached MMI.
Partial Dependent Top
Benjamin Vice, deceased, and Stacey Kohl, v. Advantage
Waste Services, Inc., and Accident Fund Insurance Company of America, Case
No. SD 29671 (Mo. App. S.D. 2009).
FACTS: The claimant, a 19 year old male, died in a
work related motor vehicle accident on August 19, 2005. At the time of his death, he was not married
and had no children.
The claimant’s mother filed a Claim for Compensation
alleging she was partially dependant on the claimant’s income. The claimant’s mother was on social security
disability starting in the Spring of 2004, when the employee was 17. When the
claimant’s mother became disabled, the claimant received a one time child
disability payment of $6,341.00. He gave
$5,000.00 of this to his mother to help maintain the household. This money had been exhausted by January
2005.
The claimant then moved out of the family home in February
2005. From February 2005 until his death
on August 19, 2005, the claimant worked full time, paid his own bills and
supported himself. The claimant did not
provide his mother with any support during this time. In addition, the claimant’s mother testified
that until the claimant died she paid her own mortgage, credit card bills,
utility bills, and other monthly expenses.
In July 2009, the claimant gave a $50.00 check to his mother
because she said she was thinking about shutting her cell phone off. The claimant’s mother said this was going to
become a regular thing because the claimant promised to send at least $100.00
per month. However, at the time he died,
the claimant had sent only one check for $50.00.
The claimant’s mother alleged that she was partially
dependant on the claimant’s income because he had promised to give her $100.00
per month.
The Commission determined that the claimant’s mother ceased
being a dependant of the claimant in January 2005. The claimant’s mother had shown a one time
gift of $50.00, but occasional gifts do not rise to the level of dependance.
HOLDING: The question of actual dependancy is a
question of fact to be determined at the time of the employee’s injury. There was insufficient evidence in this case
to establish that the claimant’s mother
was dependant on the claimant’s income.
Course and ScopeTop
Travis Anderson, Dec., by his Dependents v. Veracity
Research Co., Case No. WD 70452 (Mo. App. W.D. 2009).
FACTS: The claimant worked as an investigator who
performed surveillance in workers’ compensation claims. He would often have to travel to perform this
surveillance. In July 2003, the employee was killed in a one car accident while
out of town on a surveillance assignment.
At the time of his death, the claimant did not have any of the tools of
his trade with him and he had been drinking alcohol.
The claimant’s wife filed a claim seeking benefits and the
employer filed an untimely answer. At a
final hearing, an ALJ concluded that the claimant’s wife had not met her burden
of proving that the claimant was injured while in the course of his employment.
The wife’s Claim for Compensation alleged that the claimant
was killed “while in the course and scope of his employment.” She argued that
this was admitted because of the employer’s untimely answer. The claimant’s wife also argued that since
the employee was out of town on business he was in the course of his employment
unless the employer proved a distinct departure on a personal errand. However,
the ALJ found that these were questions of law and were not admitted by an untimely
answer. The ALJ also found that there was evidence that the claimant had
departed his employment for a personal errand because he had been drinking, was
out past normal work time, and did not have any tools of the trade with him.
HOLDING: Whether an claimant’s injury is in the
course and scope of employment is a question of law and is not admitted when an
answer is untimely filed. Though there
is an inference that a claimant is in the
course of employment at all times during out of town travel, this can be
rebutted by specific evidence. In this
case, there was sufficient evidence for an ALJ to find that the claimant had
departed on a personal errand. The
claimant must still prove that he was in the course and scope of employment at
the particular time of the accident.
Secondary Employer IndemnificationTop
Robert Max Thornsberry, v. Thornsberry Investments and
Lebanon Livestock Auction, LLC, Case No. SD 29348 (Mo. App. S.D. 2009).
FACTS: The claimant was a veterinarian employed by Thornsberry
Investments. Lebanon Auction contracted
with Thornsberry Investments for the services of the claimant, but the fees
were billed to Thornsberry Investments.
The claimant was injured while working at the Lebanon Auction.
Thornsberry Investments argued that they should receive
indemnification from Lebanon Auction because Lebanon Auction was the claimant’s
immediate employer and primarily liable for the claimant’s workers’
compensation benefits.
HOLDING: Thornsberry Investments was the claimant’s
immediate employer and was fully insured.
Therefore, even if Lebanon Auction was a statutory employer, it was a
remote or secondary employer. Since
Thornsberry Investments was primarily liable to the claimant and fully insured,
it was not entitled to indemnification
Commission TrendsTop
Over the last three months, the Commission has ruled on 37
cases and reversed or modified 8 of these cases. Five cases awarded additional compensation to
the claimants.
In Lisa M. Stegman v. Grand River Regional Ambulance
District and Missouri Rural Services Workers’ Compensation Insurance Trust, Injury
No. 02-030431, the claimant was a paramedic who was on call. When the claimant was on call, she kept a
pager with her. If the claimant was paged, she was supposed to report to the
ambulance barn within 5 minutes and immediately received an increase in her
rate of pay.
On March 31, 2002 the claimant was at home when she received
a priority one page. She immediately got
dressed and rushed to her garage to get into her vehicle. However, while she was in her garage, she
tripped and fell, injuring her knee and back.
The claimant underwent knee surgery and subsequently suffered
complications consisting of DVT.
The Commission determined that the claimant was injured in the
course of her employment because she fell into the “special task” exception to
the normal coming and going rule. The
claimant was performing a special task because she was on call, received the
most urgent page, and was expected to be at the ambulance barn within five
minutes. The Commission also found Dr.
Koprivica’s opinion more credible than Dr. Gragnani’s opinion and found that
the complications were a result of the work injury. Therefore, the Commission awarded the
claimant TTD and PPD, as well as past and future medical expenses.
In Lisa M. Ambrose v. Wal-Mart Associates, Inc. and
American Home Assurance Company c/o Claims Management, Inc., Injury No.
02-040236, the claimant suffered an injury to her lumbar and thoracic spine as
a result of her work duties at Wal-Mart. This caused pain in the claimant’s
lower back and left hip that was constant.
In addition, the claimant became addicted to the pain medication. The
Commission determined that Dr. Hughes’ opinion was in agreement with Dr. Daily’s
opinion that the claimant sustained a compensable mental injury as a result of
her work injury. Therefore, the
Commission awarded permanent partial psychiatric disability. Please note that
this injury occured before the 2005 amendments to the workers’ compensation
statute.
In Jessica Brame v. Applebee’s and Zurich American
Insurance Co., Injury No. 05-109411, the Commission determined that the
injuries the claimant sustained when a co-worker assaulted her were
compensable. The Commission found that
the claimant had stepped in to stop the co-worker from assaulting a 16 year old
employee at work. Later, when the
claimant arrived at her home, the co-worker assaulted the claimant. The evidence showed that the claimant and
co-worker had no relationship outside of work and the only altercation that
could have motivated the assault occurred at work. Therefore, the Commission awarded the
claimant TTD, PPD and past medical expenses.
This injury occurred after the 2005 amendments to the workers’ compensation
act were in effect.
In Noneeka Massey v. Marsha and Frank Spasser, Injury
No. 06-064603, the Commission determined that a Certified Nurse Aide was not
exempt from the workers’ compensation coverage and was therefore allowed to
recover PPD, TTD and past medical. The
claimant was hired by Marsha Spasser to care for her home bound husband. The employer argued that the claimant was a
domestic servant, but the Commission found that the claimant was hired
primarily for the purposes of providing nursing assistance to Mr. Sasser and
was therefore not a domestic servant.
In Alan Leake, Deceased, Linda Leake, Widow v. City of
Fulton and Missouri Intergovernmental Risk Management Association, Injury
No. 06-040056, the claimant was a firefighter who responded to two car
accidents in a short time and collapsed and died after the second rescue
attempt. The claimant had risk factors
for coronary artery disease, but had shown no symptoms before his death. The Commission determined that although the
claimant had pre-existing risk factors and an autopsy showed a significant
occlusion of the claimant’s arteries, Dr. Schuman’s opinion that a combination
of physical exertion, emotional stress, and unfavorable environmental
conditions stemming from the claimant’s work activities created a supply/demand
problem that caused the claimant’s death was more credible than Dr. Kennett’s
opinion. Therefore, the Commission
awarded the claimant’s widow death benefits.
The Commission also reduced benefits awards in 3 cases.
In Phillinese Ezell v. Famous-Barr, Injury No.
06-064536, Loretta Simon was successful in arguing that the claimant’s work
fall was not the prevailing factor in her back and bilateral knee
conditions. The Commission determined
that the claimant had pre-existing back and bilateral knee problems including
treatment for back and knee problems just 5 weeks before her work fall. The Commission determined that the work fall
merely aggravated an existing condition and that this was not compensable under
Gordon v. City of Ellisville.
Therefore, the claim was denied.
In Jeremy Sanfilippo v. Firestone Complete Auto Care and
Old Republic Insurance Company c/o Gallagher Bassett, Injury No. 08-07667,1
the Commission refused to apply the “extended premises” doctrine because it had
been abrogated by the 2005 amendments.
The claimant was injured when he was in a motor vehicle accident on a
parking lot that was not owned or controlled by the employer. The claimant argued that a storage shed on
the lot, to which the employer did have exclusive access, blocked his view and
contributed to the accident. The
Commission determined that the injury did not occur in the shed and the
claimant was off work in his personal vehicle. Therefore he was not on the employer’s
premises and the injury was not compensable.
In Amy Walters v. Children’s Mercy Hospital and Truman
Medical Center and Treasurer of Missouri as Custodian of Second Injury Fund, Injury
No. 02-144321, the Commission determined that Children’s Mercy was not liable
because Truman Medical was the employer who last exposed the claimant to the
occupational hazards for carpal tunnel.
In addition, the claimant was aware that her injury was work
related when the 2005 amendments took effect.
Therefore, the Commission determined that she had two years from August
28, 2005 to file a claim against Truman Medical.
The claimant originally filed this claim against only
Children’s Mercy on April 7, 2005. The
case was given an Injury No. Of 02-144321.
The claimant amended this claim to add Truman Medical on September 26,
2009. This amendment is time barred because it is more than two years after
August 28, 2007.
Case
Law Update - July 2009 - September 2009
Commission Did Not
Exceed Powers Top
Stanley Roberts v. City of St. Louis and Treasurer of the State of Missouri, as Custodian
of the Second Injury Fund, Case No. ED92438 (Mo. App. E.D. 2009).
FACTS: The claimant was injured at work
in October 2002 and filed a claim against his employer and the Second Injury
Fund. A hearing was held before an ALJ
on April 25, 2006. After the hearing, the parties came to a
settlement agreement. They notified the
ALJ, and stated that additional time was needed to finalize the settlement to
determine issues relating to a Medicare Set Aside trust. The ALJ agreed to temporarily delay his
ruling on the claim in light of the settlement agreement.
Without prior
notice to the parties, on August
2, 2006 the ALJ issued an award, finding the employer liable for
permanent partial disability for the lower back and left knee, and found the
Second Injury Fund liable for additional permanent partial disability. The claimant was not awarded any benefits or
funds for future medical treatment.
The claimant
appealed to the Commission, which remanded the matter to the ALJ for a further
evidentiary hearing. Following the
remand hearing, the Commission issued their first Final Award, finding that the
claimant and employer had concluded a settlement before the ALJ’s award was
issued. Under the terms of that
settlement, the Commission found that the employer was required to pay the
claimant $200,000.00 and fund a Medicare Set Aside Trust.
The employer
then appealed, arguing that the Commission erred in finding and enforcing a
settlement between the claimant and the employer. The claimant filed a cross appeal alleging error in not
addressing the issue of permanent total disability.
In August
2007, the Court of Appeals held that the Commission’s finding that a settlement
had been resolved was not supported by competent and substantial evidence. The Court of Appeals agreed that the
Commission had erred in failing to address the substantive merits of the ALJ’s
award. The case was then remanded to the
Commission.
The
Commission issued its second Final Award, finding that the claimant was
permanently and totally disabled solely due to the October 2002 work injury and
ordered the employer to pay weekly benefits in the amount of $566 beginning January 24, 2004. The Commission also attached and incorporated
the ALJ’s award “to the extent that it is not inconsistent with our findings,
conclusions, decision, and award.”
The employer
once again appealed, alleging the Commission exceeded its powers in making a
second Final Award and argued that the Commission erred in issuing inconsistent
awards and violated the principal of the law of the case.
HOLDING: The Court of Appeals
determined that, when issuing the second Final Award, the Commission acted consistently
with their mandate, and the Commission did not exceed their powers. The Court of Appeals further went to note
that, because the first Final Award was reversed and not binding, the second
Final Award was not in conflict with the first.
Affirmed.
EVIDENCE
Arising Out of and
In the Course of Employment Top
Mitchell Miller v. Missouri Highway and Transportation
Commission, Case No. SC89960 (Mo. 2009) (en banc).
FACTS: This case was discussed
previously in our January 2009 - March 2009 Case Law Update. This is a new law case where the claimant was
walking at work on a hard flat service when he felt a pop in his knee. The Court of Appeals held that the claimant’s
injury did not arise out of or in the course of his employment because the
injury came from a hazard or risk unrelated to the employment to which the
claimant was equally exposed to outside of work.
In light of
the general interest and importance of the issue, the Court of Appeals
transferred the matter to the Supreme Court.
HOLDING: The Supreme Court agreed with
the Court of Appeals. It was noted that
the claimant’s injury occurred at work, but nothing about the claimant’s work
caused his injury. The denial of benefits
was affirmed.
Causation Top
Cindy Reynolds-Byers v. Blue Cross and
Blue Shield of Missouri, Zurich North American Insurance and Treasurer of the
State of Missouri, as Custodian of the Second Injury Fund, Case No. SD29418 (Mo.
App. S.D.
2009).
FACTS: The claimant worked as a
customer service representative. Her job
required her to enter data into a computer while simultaneously using a headset
to speak to customers. She referred to
several manuals while performing her job duties. She was given work breaks, was not required
to sit in a fixed position, and could alter the height and angle of her
equipment to suit her preferences. In
this old law case, the claimant alleged that while at work in June 2004, she
felt a sharp pain in her neck, followed by neck stiffness.
The following
Monday she reported her injury and was sent to Dr. Corsolini,
who diagnosed the claimant with a herniated disc that was unrelated to
work. Dr. Corsolini
reviewed photos of the claimant’s work station prior to providing a causation
opinion. Dr. Volarich,
the claimant’s expert, agreed that the herniated disc was not work related, but
diagnosed her with work related cervical syndrome. Dr. Volarich did
not review pictures of the claimant’s work station. A trial was held and it was determined that
the claimant did not suffer a work related injury. The claimant appealed, stating that there was
insufficient competent evidence to support such a finding.
HOLDING: The acceptance or rejection of
medical evidence is for the Commission, and the Court of Appeals can not
substitute their judgment for that of the Commission when it comes to witness
credibility. Dr. Corsolini’s
testimony constituted sufficient competent evidence. The denial of benefits was affirmed.
Credibility Top
Ray Reed v. Associated Electric
Cooperative, Inc. and Treasurer of the State of Missouri, as Custodian of the Second Injury
Fund, Case No. SD29324 (Mo. App.
S.D. 2009).
FACTS: On September 26, 2001, the claimant injured his
back at work. Dr. Gibbs ultimately
performed an authorized lumbar surgery on December 13, 2001. After being released to work full duty,
additional treatment was recommended by an unauthorized treatment
provider. The claimant requested
additional treatment from his employer, and the request was denied. After the claimant scheduled a surgery, the
employer and insurer authorized additional physical therapy. After Dr. Gibbs once again released the
claimant from authorized treatment, the claimant underwent additional surgery
in the form of a lumbar fusion. The
claimant was eventually returned to work with permanent restrictions for
“sedentary work”, as well as no lifting over ten pounds, no repetitive bending
and the ability to alternate between sitting and standing at the claimant’s
discretion. Later, Dr. Gornet, the claimant’s unauthorized treatment provider, opined
that the claimant would not be able to complete an eight hour work day, even
with his restrictions.
The
Commission specifically found Dr. Gornet to be more
credible than Dr. Gibbs, and found that the claimant’s wife and son were very
credible witnesses on the issue of permanent total disability. The Commission found that the claimant was
permanently and totally disabled, and that the claimant had no pre-existing
disability. They awarded $148,461.55 for
previously incurred medical expenses, $72,323.50 for additional temporary total
disability, and $150.43 for underpayment of temporary total disability.
HOLDING: The Court of Appeals noted
that they deferred to the Commission on determinations of credibility. With respect to the TTD, the Court of Appeals
noted that because the Commission determined that the treatment the claimant
received from Dr. Gornet was necessitated by the
claimant’s work injury, the employer and insurer were responsible for the back
TTD. The Court of Appeals held that the
Commission’s findings were supported by competent and substantial
evidence. Affirmed.
Permanent Total
Disability Top
Judy A. Hartle v. Ozark Cable Contracting and Grinnell Mutual
Insurance Co., Case No. SD29197 (Mo.
App. S.D.
2009).
FACTS:
On September 17, 2002,
the claimant fell off a ladder and injured her right knee. At trial, two vocational rehabilitation
consultants testified via deposition.
Mr. Weimholdt determined that the claimant was
“disabled vocationally from working in the open competitive labor market.” Mr. Kane found that the claimant had
transferable skills, and called employers in areas near the claimant’s current
and recent residences to find jobs that fit the claimant’s skills. Mr. Kane then identified potential jobs the
claimant might qualify for and concluded that she would be employable on the
open labor market. The Commission
awarded the claimant 45% of the right knee.
The claimant appealed, alleging that there was substantial and competent
evidence to show that she was permanently and totally disabled.
HOLDING: Both of the vocational
rehabilitation counselors’ evaluations counted as substantial and competent
evidence. The Court found that it was up
to the Commission to determine which opinion was more credible or persuasive. Affirmed.
Jason Rector v. Gary’s Heating &
Cooling, Federated Mutual Insurance Co. and Treasurer of the State of Missouri,
as Custodian of the Second Injury Fund, Case Nos. SD29641 and SD29643
(consolidated) (Mo.
App. S.D.
2009).
FACTS: On September 24, 2004 the claimant slid from a
ladder and suffered work related injuries.
In February 2005, after several days of drilling a hole through a
concrete wall, the claimant complained of a loss of sensation in his arms and
hands and the inability to make a fist.
Although the claimant did not have any surgeries, at the time of the
appeal, he continued to require a daily Fentanyl pain
patch, five Lorcets, and three ten-milligram Amitryptilylines.
The
Commission awarded the claimant permanent partial disability benefits for the
September 2004 matter, and permanent and total
disability benefits for the February 2005 matter. The Commission determined that the claimant
was permanently and totally disabled due to a combination of the February 2005
injury and the claimant’s pre-existing injuries or conditions, therefore the
SIF was responsible for the permanent and total disability benefits.
HOLDING: The Court of Appeals found
that there was substantial and competent evidence in the record regarding the
claimant’s inability to work caused by a combination of his 2004 and 2005
injuries, and thus to support the Commissions’ decision. Affirmed
Principal Place of
Business and Course and Scope Top
Ronald Harness, Jr., deceased, Robin
Yvonne Harness, Ronald Arthur Harness, III, and Elizabeth Harness v. Southern Copyroll, Inc. and Firstcomp
Insurance Co., No. SD29309 (Mo. App.
S.D. 2009).
FACTS: On August 8, 2006 the claimant was instructed by
his employer to travel from Fair Grove to Custom Tool Crafters around noon and work there until 3:30 p.m. The claimant was paid mileage when he would
work at locations other than Fair Grove.
At 4:00 p.m., the
claimant left CTC, and asked another employee to follow him to the gas station
because he was almost out of gas. While
the claimant was filling his vehicle, the claimant said he was going home. The claimant then traveled north on Highway
65. While on Highway 65, the claimant
was killed in automobile accident. The
claimant would have followed this route if he were returning to Fair Grove or
if he were going home.
Because the
co-employee stated that the claimant said he was going home, the employer and
insurer denied the claim, arguing the claimant’s accident was not in the course
and scope of his employment. However,
another co-employee testified that around 3:40 p.m. the claimant said that he was heading home
“after a quick s Top at the Fair Grove plant.”
This employee had ridden with the claimant on a number of occasions and
testified that it was the claimant’s consistent practice to always s Top in at
Fair Grove on the return trip from CTC.
The employer and several employees testified that the principal place of
business was Fair Oak, not CTC.
At a trial,
the ALJ determined that the employer’s principal place of business was Fair
Oak. The ALJ also determined that the claimant was not traveling from the
employer’s principal place of business to his home at the time of his
accident. The ALJ awarded death benefits
and burial expenses. The Commission
unanimously adopted the ALJ’s findings.
HOLDING:
The Court of Appeals determined that Fair Oak was the employer’s principal
place of business. The Court of Appeals
also noted that, when an employee’s job entails travel away from the employer’s
principal place of business, the employee is held to be in the course of
employment during the trip, except when on a distinct personal errand, the
employee is traveling in a company owned or subsidized automobile from his home
to the employer’s principal place of business or if the employer’s principal
place of business is the employee’s home.
The Court of Appeals held that the accident occurred during the course
and scope of the claimant’s employment because he was paid round trip mileage
and was on the route to the employer’s principal place of business at the time
of the accident. Additionally,
sufficient evidence existed to show the claimant was not going directly home
from CTC, but intended to s Top in Fair Grove.
Affirmed.
Statutory Employee Top
Alan Joseph Olendorff
v. St. Luke’s Episcopal-Presbyterian Hospitals d/b/a St. Luke’s Hospital and
Shipping Utilities, Inc., ED92033 (Mo. App. E.D. 2009).
FACTS: The claimant was a general
carpentry foreman employed by McCarthy to perform work on St. Luke’s
campus. In early August 2004, the
claimant installed a new height restrictor in a parking garage using hardware
that was ill fitted to hold permanently.
The following week, the claimant returned with new hardware to secure
the height restrictor. During that task,
the claimant was injured when the scissor lift he was using elevated suddenly,
collapsed, and pitched the claimant approximately fifteen feet to the pavement.
The claimant
filed a personal injury claim against St. Luke’s and the manufacturer of the
scissor lift. St. Luke’s filed a motion
to dismiss for lack of subject matter jurisdiction, alleging the claimant was a
statutory employee and therefore workers’ compensation was the exclusive
remedy. The claimant argued that he was
not a statutory employee because his “regular or frequent” work was new
construction, and not maintenance. More
specifically, he argued that St. Luke’s had never issued a work order for the
installation of a height restrictor before, and therefore, the claimant’s work
on the height restrictor was not routine.
They further argued that the section of the statute pertaining to
statutory employment does not apply when an employee is engaged in capital
improvement projects. The trial court
granted the motion and dismissed the claimant’s claims against St. Luke’s.
HOLDING: The Court of Appeals
determined that the work the claimant was doing at the time of his injury was
the type of maintenance work contemplated by and regularly performed pursuant
to the contract. They noted that the specific
activity in question does not need to be explicitly described in order to fall
within the purview of statutory employment.
Finally, the Court noted that the claimant never advanced the argument
regarding a capital improvement project before the trial court, so it was not
preserved for appeal. Affirmed.
Terrill Sell v. Carlisle Power
Transmission Products, Inc., Case No. SD29510 (Mo. App. S.D.
2009).
FACTS: The claimant was employed by
Rust Constructors as a maintenance leadman. Rust had a written agreement with Carlisle to perform maintenance on their plant. The claimant slipped and fell on a slick
ladder at Carlisle’s manufacturing plant. He recovered workers’ compensation
benefits. He then sued Carlisle
in circuit court and won a money judgment.
Trial testimony showed that the work the claimant was performing at the
time of his accident was within Rust’s regular maintenance program. Carlisle
appealed, arguing that the claimant was its statutory employee under the
Workers’ Compensation Act, therefore, Workers’ Compensation was the sole
remedy.
HOLDING: The Court of Appeals noted
that, unless the capital improvements exception applied, this was a classic
case of statutory employment. They also
noted that the capital improvements exception did not apply to ordinary repair
and maintenance of equipment. Therefore,
the claimant’s injuries fell under the Workers’ Compensation Act and his civil
suit was dismissed.
Uninsured Employer
and Second Injury Fund Liability Top
Larry Busby v. D.C. Cycle Ltd. and
Treasurer of Missouri,
as Custodian of the Second Injury Fund, Case No. SD29464
(MO. App. S.D.
2009).
FACTS: The claimant was injured during
the course and scope of his employment at D.C. Cycle. D.C. Cycle did not have workers’ compensation
insurance, despite the fact that they had five or more employees. In light of this, D.C. Cycle argued that the
Second Injury Fund was obligated to pay any benefits the claimant was entitled
to receive.
The SIF
argued that D.C. Cycle did not have five or more employees. They argued that Shirley Hutchinson provided
volunteer services but they did not constitute a degree of controllable
services to constitute employment. They
also argued that Chelley Bennett, who was an officer
of the corporation, did not participate in the business to a level that would
cause her to be considered an employee.
The Commission found that both were employees of D.C. Cycle.
HOLDING: The Court of Appeals
determined that there was substantial and competent evidence in the record to
show that both Hutchinson and Bennett were employees of D.C. Cycle, therefore,
the SIF was obligated to pay workers’ compensation benefits to the claimant.
Interpreting Schoemehl Top
Theresa Cochran v. Travelers Insurance
Co., Case No. SD 29229 (Mo. App.
S.D. 2009).
FACTS: On May 17, 1999 the Court of Appeals made an award
of permanent total disability benefits to Thomas Cochran, Theresa Cochran’s
husband, final. Thomas Cochran died on September 21, 2003. Following the Schoemehl decision in January
2007, Theresa Cochran filed a petition in the Circuit Court
of Scott
County to enforce her
late husband’s permanent total disability award, arguing that, as a matter of
law, she was entitled to those benefits.
The trial court issued a judgment specifically finding that Theresa
Cochran was Thomas Cochran’s dependent at the time of the workers’ compensation
award and granted benefits. The insurer
appealed, arguing that Thomas Cochran’s claim was not pending between January 7, 2007, the date Schoemehl was
handed down, and June 26,
2008, as required by the Bennet case.
HOLDING: The Court of Appeals found
that Schoemehl did not apply to the workers’
compensation award in this case.
Therefore, Theresa Cochran did not have standing as a “party in
interest” to prosecute enforcement of the award. Reversed and remanded.
Commission Trends Top
Over the last
three months, the Commission has ruled on 51 cases and reversed or modified
only three of those cases. Two cases
awarded additional compensation to the claimants.
In Danny Green v. Platte County, Mid America
Regional Council Insurance Trust and Treasurer of the State of Missouri, as
Custodian of the Second Injury Fund, Injury No. 05-099387, the Commission
determined the claimant had to travel between 40 and 70 miles in order to
attend his doctors’ appointments. They
also determined that the opinions of Dr. Koprovica
and Dr. Hartley were proof beyond speculation that the claimant would require
future medical treatment from his work injury.
Therefore, they awarded mileage reimbursement and future medical
benefits.
In David Vance v. Blake Flooring Co.,
Mid-Century and Treasurer of the State of Missouri, as Custodian of the Second Injury
Fund, Injury No. 03-107773, the Commission noted that the parties
stipulated that the claimant sustained an occupational disease which arose out
of and during the course of his employment.
Therefore, the ALJ could not conclude that the claimant did not sustain
an occupational disease that arose out of and in the course of his
employment. The Commission then awarded
permanent partial disability benefits, but did not award permanent total
disability benefits.
In the third
case, Marisca Huskic v.
Missouri Baptist Medical Center and Self c/o BJC Healthcare, Injury No.
06-049702, the Commission denied benefits.
This is an important case because the Commission provides their
interpretation of Gordon v.
Ellisville. (See our March 2009 -
May 2009 Case Law Update for more complete information regarding Gordon v. Ellisville.
)
In May 2004,
the claimant was in a non-work related car accident in which she hit her right
arm. On January 4, 2006 the claimant underwent a right
shoulder arthroscopic subacromial decompression and
distal clavicle resection. The claimant
returned to work in May 2006, but had limited use of her right arm. The claimant then alleged that on June 1, 2006 she was lifting
a trash bag out of a trash can with her left arm, reached over to assist with
her right arm and heard a pop in her right arm.
Following this alleged incident, the claimant received additional
treatment for her right shoulder.
The
Commission noted that this was a new law case with facts that were similar to
those in Gordon v. Ellisville.
Therefore, the Commission noted that they were going to use the same legal
analysis used in Gordon.
The
Commission stated that, in Gordon,
the Court of Appeals determined that, even if the claimant showed that the work
incident was an aggravation of the prior injury, he failed to satisfy his
burden of proof because he did not prove that his work accident was the
prevailing factor in causing his need for additional surgery and recovery
time.
The
Commission noted that in Huskic,
Dr. Sedgwick did opine that the claimant’s right shoulder adhesive capsulitis was caused by the June 1, 2006 injury, but he
went on to testify that a lot of things could cause popping around the
shoulder, and that an arthroscopic surgery would be needed to determine exactly
what was causing the claimant’s right shoulder pain. The Commission also noted that Dr. Burke testified
that the claimant had some type of calcium deposit around her AC joint that
seemed to be the main problem. The
Commission determined that Dr. Burke was more credible, and that Dr. Sedwicks’ opinion was speculative.
The
Commission then found that the June
1, 2006 incident was not the prevailing factor in causing the
claimant’s right shoulder condition, disability and need for further care. Therefore, no benefits were awarded.
Case
Law Update - April 2009 - June 2009
Appellate Court Jurisdiction of Temporary or Partial
Awards Under New Law  Top
Brenda Bolen v. Orchard
Farm R-V School District and Missouri United School Insurance Council, Case
No. ED92007 (Mo. App. ED 2009).
Thomas Smalley v. Landmark
Erectors and American Family Mutual Insurance Co., Case No. ED91861 (Mo.
App. ED 2009).
FACTS: In both Bolen and
Smalley, an ALJ issued a temporary award requiring the employer and
insurer to provide benefits. In each
case, the employer and insurer had denied all liability, and appealed the
temporary award.
HOLDING: Before the 2005
Amendments were enacted, an employer and insurer could appeal temporary or
partial awards in certain circumstances.
One of those circumstances, when the employer and insurer denied all
liability, was derived from case law and was not a part of the statute. The 2005 Amendments now require that the
Workers’ Compensation statute be strictly construed. In light of this, employers and insurers no
longer have the right to appeal a temporary or partial award, even when they
deny all liability. Therefore, both of
these appeals were dismissed due to lack of jurisdiction.
Retroactive Application of
Statute
Retroactive Application of
Statute  Top
Tina Ball-Sawyers v. Blue
Springs School District and Treasurer of the State of Missouri, as Custodian of
the Second Injury Fund, Case No WD69624 (Mo. App. W.D. 2009).
FACTS: The claimant filed
a workers’ compensation claim in 2001. After a hardship hearing, the employer and
insurer were ordered to pay back TTD in the amount of $35,001.27 and to pay
future TTD and pay for medical treatment “as necessary.” At a final hearing, it was determined that
the employer and insurer had failed to pay $176,127.90 in medical expenses
incurred by the claimant since the temporary award. It was also noted that the employer and
insurer did not begin paying TTD benefits for seven months following the
temporary award. Citing RSMo section
287.510 (2000), a $236,189.90 penalty was applied for non-compliance with the
temporary award.
On appeal, the employer and
insurer argued that RSMo section 287.510 (2005), as amended, should apply. The amended statute only allows for unpaid
portions of a temporary award to be doubled, not the entire temporary award.
HOLDING: The Appellate Court opined that RSMo section
287.510 (2005) applied retroactively because it only substituted a new remedy
for the enforcement of an existing right.
Therefore, only the unpaid portions of the temporary award could be
doubled. The unpaid medical was doubled,
while the back TTD amount was not.
Claimant’s Responsibility For
Medical Costs  Top
Holly Beard v. St. Francis
Medical Center, Case No. SD29126 (Mo. App. S.D. 2009).
FACTS: The claimant
alleged a work related back injury, which was denied by the employer and
insurer. The claimant sought treatment
on her own, submitting her bills to her group health plan, knowing she would be
billed for co-pays and the like. The
claimant said she did this because she wanted treatment. The claimant then won a temporary award that
required the employer and insurer to provide medical care. However, the claimant continued to submit her
bills through her group health plan.
The hospital attempted to collect
the claimant’s co-payments on at least six occasions, and the claimant refused
to pay them. The claimant cited RSMo
section 287.140.13, which states that, unless a health care provider was chosen
at the claimant’s expense, they cannot bill or attempt to collect any fee from
the claimant if given statutory notice.
Additionally, if the health care provider pursues any action to collect
from a claimant after they have been given such notice, the health care
provider can be sued for actual damages, statutory damages and attorney’s
fees.
HOLDING: The claimant
sought treatment on her own with providers she chose. The claimant was obligated to pay, and
proposed to do so through her group health plan. Because she continued doing so even after she
won the temporary award, the Court of Appeals determined that she caused the
hospital to treat and bill her as a group health plan patient. She could not complain when the hospital
billed her in the manner she invited, nor could she invoke the statutory
protections of RSMo section 287.140.13.
The claimant does have to pay the hospital bills.
Aggravation of Pre-Existing Condition Not Compensable
Under New Law  Top
Jack Johnson v. Indiana
Western Express, Inc. and Treasurer of the State of Missouri, as Custodian of
Second Injury Fund, Case No. SD29258 (Mo. App. S.D. 2009).
FACTS: In August 2004,
when the claimant was not working for Indiana Western Express, he sustained a
low back injury. In 2004, the claimant
underwent epidural steroid injections, and eventually had surgery, consisting
of a transcutaneous disc resection at L4-5 and L5-S1 in April 2005. In June 2005 it was noted that the pain and
tightness in his back continued and his doctor at that time noted it was still
quite debilitating. At another follow up
visit, additional surgery, in the form of a discectomy and fusion, was
discussed. The claimant did not follow
up after that visit.
In November 2005 the claimant
began working at Indiana Western Express.
The claimant alleged he sustained an injury to his back on February 9,
2006 as a result of a specific accident.
However, Dr. MacMillan opined that the claimant sustained no new
injury. He stated that the claimant had
two MRI’s “bracketing” the injuries and there was no significant change between
the studies, thus there was no objective evidence that something happened or
had changed. He opined that the claimant’s
pain was caused by the two degenerative discs that were present before the
alleged 2006 injury.
Holding: Under the new
law, the event that arises out of and in the course of employment must be the
prevailing factor in causing the claimant’s condition in order for that
condition to be compensable. It is not
sufficient that the event simply aggravated a pre-existing condition. Therefore, this matter was denied.
Sufficiency of Evidence in
Occupational Disease Claim Under Old Law  Top
Tina Ball-Sawyers v. Blue
Springs School District and Treasurer of the State of Missouri, as Custodian of
the Second Injury Fund, Case No WD69624 (Mo. App. W.D. 2009).
FACTS: The claimant began
working as a school bus driver in 1995.
In late 1997, she began to treat with her personal physician for back
pain. In early 1998, her personal
physician recommended a more sedentary job.
In 2000, she began treating with a chiropractor. After an MRI in 2001, she sought the opinion
of an orthopedic surgeon. She was
diagnosed with a herniated disk and degenerative disk disease. The surgeon opined that her complaints were
work related and advised not to return to work.
At that point, the claimant filed a workers’ compensation claim.
At a final hearing, the claimant
was awarded permanent and total disability benefits from the employer. The employer and insurer appealed, arguing
that the claimant did not have a compensable injury.
HOLDING: The Court of
Appeals specifically noted that the claimant was not diagnosed with a
degenerative disk until six years after she began her job as a bus driver. Additionally, three different physicians
testified that the bouncing and jarring the claimant experienced as a bus
driver was the substantial factor in the cause or aggravation of her
degenerative disk problems. The opinion
of the employer and insurer’s IME physician was discounted because that
physician acknowledged that he failed to ask the claimant a single question
about her job duties, as he felt they were irrelevant to his opinion that she
suffered from degenerative disk disease.
Therefore, the finding of permanent and total disability against the
employer was affirmed.
Barbara Vickers v. Missouri
Department of Public Safety, Case No. WD69233 (Mo. App. W.D. 2009).
FACTS: The claimant worked
as a laundry aid at the Missouri Veteran’s Home. She collected all of the resident’s laundry,
including linens, bed pads, sheets, blankets and personal clothing. She transported the items to the laundry in
the basement where she washed and dried the items. The claimant would often handle items soiled
with human feces in this process. During
the claimant’s period of employment, the Home treated four to six patients who
had clostridium difficile (C diff), a contagious bacteria.
In late August 2004, the claimant
became ill with what she thought was a sinus infection and sought treatment
with her personal physician. Within days
she was extremely ill and admitted to the emergency room where it was found she
had contracted C diff. Surgeons
immediately removed all but six to eight inches of the claimant’s colon. The surgery required an ileostomy, which is
the attachment of an external pouch to the claimant’s abdomen to collect
intestinal waste. It also caused
numerous other physical and psychological complications. The claimant did not return to work.
Two nurses testified that they
had between two and five patients with C diff while the claimant was working at
the Home. A medical experts testified on
the claimant’s behalf, stating that the claimant’s duties as laundry aid, which
required her to handle laundry contaminated with fecal matter, made it more
likely than not that the claimant contracted C diff at the Home.
At trial, it was determined that
the claimant failed to establish, based upon a reasonable probability, that she
was exposed to and contracted C diff at the Home.
HOLDING: The claimant’s
medical expert established a probability that she contracted C diff at the Home
and that her work conditions caused her injury.
According to RSMo section 287.067, a communicable disease is compensable
if the claimant puts forth evidence that she was exposed to and contracted the
disease arising out of and in the course of her employment. The claimant put forth such evidence,
therefore, this claim was compensable.
The case was remanded to the Commission to determined the amount of
temporary and permanent benefits, as well as the extent of medical payments,
due the claimant.
Idiopathic Condition Under New Law  Top
Vanessa Crumpler v.
Wal-Mart Associates, Inc. and American Home Assurance, Case No. SD29489
(Mo. App. S.D. 2009).
FACTS: The claimant, an
insulin dependent diabetic, was at work and asked to take her lunch break. Because they were shorthanded, her supervisor
asked her to wait for another worker to return in fifteen minutes before doing
so. Soon after, the claimant passed out due to low blood
sugar. She was transported to the
hospital over her husband’s objections and released the same day. She returned to work five days later.
The claimant filed a workers’
compensation claim. At a hearing, she
only sought payment of the ambulance and hospital bill and offered no medical
evidence. An ALJ found the claimant’s
condition to be idiopathic and thus not compensable. The claimant argued that the reason she
passed out was “directly caused” by Wal-Mart’s failure to promptly grant her a
lunch break.
HOLDING: The Appellate
Court noted that the work-relatedness of this particular episode would have to
have been proven by medical testimony, and without that a finding for the
claimant would be based upon conjecture.
Therefore, the claimant’s case was denied.
Commission Trends Top
Over the last three months, the
Commission has ruled on 43 cases and reversed or modified only 6 of those
cases. Of those, only 3 were changed regarding liability against the employer
and the insurer.
In Nancy Brunner v. Columbia
Public School District, Treasurer of Missouri as Custodian of Second Injury
Fund, Injury No. 07-006357, the Commission held that the ALJ computed the
claimant’s average weekly wage incorrectly, when he divided the claimant’s 187
days of work over a period of 12 months to determine the amount. It was the
Commission’s opinion that to fairly and justly determine the employee’s average
weekly wage, the most reasonable calculation would be to divide the claimant’s
average salary by 187 days, which was the amount of days actually worked. Thus,
the claimant’s average weekly wage was modified from $766.56 to $1,065.80.
In Jeffrey McBride, Deceased,
Christa McBride-Brown, Widow; Kolter Austin McBride and Gryffin William
McBride, Dependent Sons, Missouri Department of Transportation, Injury No.
07-116601, the Commission held that the Administrative Law Judge erred on his
calculation of the claimant’s remarriage benefit. The ALJ found that the
employee’s death benefits were $345.08 per week, to be distributed equally
among the claimant, and the two dependent children, for a total of $115.03
apiece. After the remarriage, the Administrative Law Judge ordered the employer
to pay a remarriage lump sum payment to Christa equal to 104 times the weekly
death benefit of $345.08. The Commission found that the proper payment should
have been at 104 times the $115.03 amount.
In Kathy Sandlin v.
Daimler-Chrysler and Treasurer of Missouri, as Custodian of the Second Injury
Fund, Injury No. 04-050587, the Commission held that the Administrative Law
Judge erred in finding the employee did not prove that she sustained an
accident arising out of and in the course of her employment. The Commission
found that the ALJ erroneously concluded that the employee was not credible.
The Commission disagreed with the ALJ, and found that there was no evidence to
contradict the employee’s assertion that the accident and injury was sustained
on May 28, 2004. In fact, the Commission noted that there was evidence to
support the claimant’s assertion that she sustained an injury, and her plant
medical records indicated that she did report to the plant medical unit on the
date of the injury, providing consistent testimony. In light of the consistent
records and testimony from various witnesses, the Commission determined that
the ALJ’s decision was against the credible weight of the evidence.
Case
Law Update - January 2009 - March 2009
Constitutionality of 2005 Statutory Amendments Top
Missouri Alliance for Retired Americans, et al. v. Treasurer of the State
of Missouri, Custodian of the Second Injury Fund, Mo. banc SC88368 (Mo.
banc 2009).
FACTS: After the legislature made several amendments to the Missouri Workers’ Compensation
laws in 2005, a group of labor organizations filed a petition against the
Division of Workers’ Compensation and Labor and Industrial Relations
Commission alleging: (1) the 2005 amendments were unconstitutional because
the application of the amendments deprived workers of due process; (2)
the amendments violated the original bargaining agreement between the employer
and the worker, which provided that the worker would give up the right
to sue civilly; and (3) the amendments narrowed the definitions of “accident” and “injury”,
therefore, leaving workers without a remedy.
ISSUE: Did the 2005 amendments violate the constitutional right of workers
who may one day sustain an injury that could fall under the umbrella of
the Workers’ Compensation Act?
HOLDING: The Supreme Court analyzed each of the three arguments individually.
It held that the first argument that the 2005 amendments were unconstitutional
because they deprived workers of due process was not ripe or justicable.
The Court reasoned that the claim was “purely hypothetical” and
found that the claim did not provide specific facts to support an allegation
that a controversy existed for a individual person. In making the determinations,
the Supreme Court noted that to present a judicable controversy the organizations
must prove: (1) a legally protectable interest was at stake, (2) substantial
controversy exists with genuinely adverse interests, and (3) the controversy
is ripe for judicial determination.
The Court held that there was no legally protected interest at stake because
the organizations based the claim on a hypothetical injured worker and
did not provide specific facts to support the allegations. It found that
although a controversy did exist, it was not ripe. It was not ripe because
the facts were not fully developed enough to make a determination on the
problem. The Court held in the absence of facts, “it is impossible
to adjudicate” the claims.
As for the second argument that the claim violates the original bargaining
agreement between the employer and the worker, the Supreme Court found
that there is no requirement in the law that the legislature must keep
the workers’ compensation statutes the same as they were when the
original Act was formed. The workers argument that there must be a quid
pro quo was without merit.
As for the third argument, the Court did find that claim was ripe. It
held that although the amendments might narrow the definition of accident
and injury, the worker is ultimately not without remedy, because the worker
has a right to pursue a civil claim.
Timely Notice of Filing Claim with Bankruptcy Court Top
Richard Jones v. GST Steel Co., Case No. WD69299 (Mo. App. W.D. 2009).
FACTS: Richard Jones was an employee of Granite City Steel (GST) for over
34-years, until the plant closed in May 2001. During that time he was exposed
to loud noises. He was diagnosed with hearing loss on February 1, 2001.
Shortly before the plant closed, he was informed that GST was filing for
bankruptcy. In June 2001, the bankruptcy court sent a notice advising creditors
to file proofs of any claims against GST by July 27, 2001. Jones did not
file a proof of claim with the bankruptcy court. Subsequently, in early
2003, he filed a formal Claim under the Workers’ Compensation Act
alleging injury to both ears, with an injury date of May 15, 2001, which
was his last date of work.
ISSUE: Whether or not the claimant should have filed a notice with the
bankruptcy court to protect his claim.
HOLDING: The Appeals Court held that the claimant did not need to file
a proof of claim with the bankruptcy court and reasoned that notice of
the bankruptcy was not an issue in the case.
In reaching this decision, the Appeals Court reasoned that the purpose
of the Guaranty Corporation was to compensate workers’ entitled to
receive benefits from a self-insurer that is unable to meet its workers’ compensation
benefit obligations. The court noted that the Guarantee Corporation was
insurance that injured workers would still have a means to collect payment
for their injuries after a company becomes insolvent.
The court also noted that Section 287.197.7 of the Workers’ Compensation
Statute states that no claim for occupational deafness may be filed until
at least six months of separation from the type of noisy work. The Appeals
Court held that the purpose behind the section was to prevent employees
from claiming occupational hearing loss before time passed to determine
whether the loss was temporary or permanent. Pursuant to that section,
the claimant could not have even “filed” his claim for occupational
hearing loss until after November 15, 2001, which was three and one-half
months after the close of the bankruptcy claim period.
The Appeals Court reasoned that when two or more statutes address the
same subject matter, it seeks to interpret the statutes in a way that harmonizes
them both. Where there is an arguable or apparent conflict between two
statutes, the statute dealing more specifically with the matter is the
controlling statute. It found that the statute regarding the time lines
for filing a hearing loss claim controlled. In determining that, it noted
that the Guaranty Corporation’s argument that Jones, out of a super
abundance of caution, should have notified the bankruptcy court that he
anticipated being able to file a claim several months later was faulty.
Therefore, the claimant was entitled to compensation and the Appeals Court
reversed the decision of the Commission.
Application of Notice Requirement for Occupational Disease Claim Top
Allen Allcorn v. Tap Enterprises, Inc. and Travelers Commercial Casualty
Co., Case No. SD29311 (Mo. App. S.D. 2009).
FACTS: Allen Allcorn began working as a semi-truck driver and tool salesman
on February 1, 2004. His job required him to travel to trade shows and
set up tool displays. After a few weeks of work, he began to notice low
back pain. His initial treatment for those complaints was on February 17,
2004. He treated on his own with his family doctor throughout the months
of March, April and May 2004. Ultimately, he had an MRI on May 19, 2004
that revealed a herniated disc. He was then referred to Dr. Green for surgery,
however, due to lack of insurance or ability to pay he did not undergo
surgery.
Approximately two years passed and the facts did not reveal that the claimant
received medical treatment during that time period. Subsequently, on April
14, 2006 he was laid off. Two days later, on April 16, 2006 he returned
with back pain. He was then referred again to Dr. Green. On May 30, 2006
a second MRI revealed similar results.
On June 15, 2006 he filed a claim alleging a date of accident of January
31, 2004.
Several months later, on September 25, 2006 the claimant was evaluated
by Dr. Paff, who opined that the work exposure between February 1, 2004
and February 17, 2004 caused his disc herniation and need for surgery.
A few months later, on November 9, 2006 the claimant filed an amended
Claim with an occupational disease date of April 14, 2006, which was his
last date of employment.
ISSUE: Was there a valid notice defense.
HOLDING: The Court of Appeals noted that the legislatures intent required
strict construction of the statutes. The particular notice statute involved
was Section 287.420, that provided no proceedings for compensation for
occupational disease or repetitive trauma shall be maintained unless six
requirements are met. Those six requirements are: (1) written notice, (2)
time, (3) place, (4) nature of the injury, (5) the name and the address
of the person injured, and (6) given to the employer no later than 30 days
after the diagnosis of the condition.
The Court noted that Sections involved in the appeal regarded requirements
numbers two and six, which involve time and diagnosis of the condition.
The Appeals Court reasoned that “diagnosis of the condition” is
when a diagnosticition makes a causal connection between the underlying
medical condition and the work activity. It held that the claimant was
ultimately diagnosed with his condition when he saw Dr. Paff on September
25, 2006 and the doctor connected the injury to his work. Since the initial
claim was filed on June 15, 2006, the notice requirement was met, because
the requirement indicates that it must be given no later than 30 days after
the diagnosis. The Court held that the claimant actually gave notice prior
to the actual diagnosis.
With regard to the time requirement of the notice provision, the Court
found that the claimant did not adequately comply. The dates listed on
the Claim of injury were January 31, 2004 and the first date of employment
was February 1, 2004. The Court said even though it seems harsh, the claimant
was one day off and he could not have possibly been injured on that day.
The Court did note that if the claimant’s failure to provide adequate
notice did not prejudice the employer, then the time requirement could
be waived.
The Court remanded the case back to the Commission to determine whether
the employer was prejudiced by the claimant’s failure to properly
notify of the time of the injury.
Right of Second Injury Fund to Pursue Subrogation Interest Top
Joseph Banks v. Sarah Steelman, Treasurer of the State of Missouri as
Custodian of the Second Injury Fund, Case No. ED91699 (Mo. App. E.D. 2009).
FACTS: Joseph Banks was driving his vehicle for work when another vehicle
struck his car causing him to sustain injuries to his neck and bilateral
shoulders. Due to physical injuries from the accident, the claimant testified
that he was no longer able to perform his work duties. Ultimately, the
claimant settled his Workers’ Compensation claim against the employer/insurer.
The claimant also filed a claim against the other drivers insurance company
and settled that case for the policy limits of $100,000.00.
At a hearing, an ALJ found in favor of the claimant and awarded permanent
total disabilities against the Fund. The ALJ did not Award the Fund a subrogation
interest in the claimant’s third party recovery.
ISSUE: Whether a subrogation interest should have been awarded to the
Fund.
HOLDING: The Court of Appeals held that the Commission erred by failing
to address the Fund’s subrogation interest. It specifically noted
that the common law right of subrogation applied and that any person, who
pursuant to a legal obligation to do so, has paid for an injury resulting
from the wrong of another may be subrogated to the rights of the injured
person against the wrongdoer. The Court reasoned that the purpose of the
right of subrogation is to prevent unjust enrichment of the employee, who
could retain both compensation and damages therefore obtaining a double
satisfaction for one wrong.
The Appeals Court granted the Fund’s appeal and reversed and remanded
the case to the Commission.
Application of “The Prevailing Factor Standard” in
Aggravation of Pre-Existing Condition Cases Top
Gerald Gordon v. City of Ellisville and Treasurer of the State of Missouri
as Custodian of the Second Injury Fund, Case No. ED91097 (Mo. App. E.D.
2008).
FACTS: On October 21, 2005, Gerald Gordon was climbing out of a tub grinder
at work when he slipped and fell on his right arm. His employer referred
him to Dr. Lehman, who performed an MRI that revealed a massive rotator
cuff tear. Approximately one month later, Dr. Lehman performed surgery
on the right shoulder. At a hearing, Dr. Lehman testified that when he
operated on the claimant’s shoulder he found no evidence of any good
rotator cuff tissue. He also noticed chronic changes in the claimant’s
shoulder that appeared to be long-term in nature. Because he found no evidence
of good rotator cuff tissue and no acute changes, he concluded that the
claimant’s October 2005 work accident was not the prevailing factor
in causing the need for the surgery.
At a hearing, the claimant testified that he sustained a prior shoulder
injury in 1993, for which he underwent an open right rotator cuff repair.
According to the claimant, after that surgery he was 99.5% back to normal
and had no difficulties performing the labor required for his job. He also
testified that he could play softball, bowl, and golf without problems.
Dr. Poetz testified on the behalf of the claimant and diagnosed the claimant
as having a right rotator cuff tear from the 1993 injury as well as a massive
irreparable right rotator cuff tear from the 2005 injury. He concluded
that Dr. Lehman’s surgical procedure was necessary because of the
claimant’s 2005 injury.
The Commission found that Dr. Lehman’s testimony was more persuasive
and credible than Dr. Poetz’s because Dr. Poetz was a family doctor
who did not perform shoulder surgeries and Dr. Lehman was a board-certified
orthopedic surgeon who devotes 40% of his practice to shoulder surgery.
In addition, Dr. Lehman actually performed the surgery on the claimant
and viewed the damage to the claimant’s shoulder while Dr. Poetz
was unable to do so.
ISSUE: Whether the claimant’s accident rose to the prevailing factor
in necessitating the need for his surgery. Specifically, whether the aggravation
of a pre-existing condition met the burden of proving the prevailing factor
standard.
HOLDING: The Court of Appeals affirmed the Commission’s decision
denying benefits. The Court held that a work place injury was only compensable
if the accident was “the prevailing factor in causing both the resulting
medical condition and disability”. The Court noted that the definition
of “prevailing factor” is “the primary factor in relation
to any other factor”.
The Court reasoned that the claimant did not prove that his work accident
was the primary factor in causing the need for the rotator cuff surgery.
It found that the Commission’s decision correctly considered the
testimony of the claimant’s expert, Dr. Poetz and the Employer’s
expert, Dr. Lehman before making a decision. Dr. Lehman noted that the
claimant’s injury was chronic and not acute, therefore, the need
for surgery was caused by not the claimant’s work accident, but
a chronic condition, and the Appeals Court affirmed the Commission’s
decision that the claimant did not meet the prevailing factor standard.
Arising Out Of and In The Course of Employment Top
Mitchell Miller v. Missouri Highway and Transportation Commission, Case
No. ED91671 (Mo. App. E.D. 2009).
FACTS: Mitchell Miller worked as an assistant maintenance supervisor
and crew chief for the Missouri Highway and Transportation Commission.
On September 29, 2005 he was supervising a crew that was preparing a
section of road on Route N. His crew informed him that they were running
out of asphalt, therefore, he walked briskly back to his truck in order
to obtain extra materials. About three quarters of the way back to the
truck, the claimant felt a pop behind his right knee followed by pain.
He did not know what triggered the pop and he had no prior history of
problems. He did not slip, trip, or stumble nor did he fall.
He reported an injury to his right knee to his employer, who subsequently
denied the case. He sought treatment on his own, and underwent surgery
to repair a tear of the meniscus.
He was evaluated by Dr. Haupt, who opined that the claimant’s work
related injury of September 29th was the prevailing factor in the development
of his symptoms and condition. Dr. Haupt further admitted that a brisk
walk was not a typical mechanism of injury for a meniscal tear, however,
since the claimant was pain free before the walk he considered the claimant’s
walking the prevailing factor. He also indicated that there was no difference
between the risk of developing damage to the knee from walking at home
or walking at work.
ISSUE: Whether the claimant’s knee injury arose out of and in the
course and scope of his employment as defined in Section 287.020.3.
HOLDING: The Court of Appeals held that the Commission correctly determined
that the injury did not arise out of or in the course of the claimant’s
employment, because the injury came from a hazard or risk unrelated to
the employment to which he was equally exposed outside of work. In reaching
this conclusion, the Appeals Court reviewed Section 287.020.3, which provides
that an injury is deemed to arise out of and in the course and scope of
employment only if: (1) It is reasonably apparent, upon consideration of
the circumstances, that the accident is the prevailing factor in causing
the injuries, and (2) That it does not come from a hazard or risk unrelated
to the employment to which workers would have been equally exposed outside
of and unrelated to the employment in normal unemployment life.
The Appeals Court focused on the second test and specifically analyzed
whether walking was a hazard or risk unrelated to employment that the
claimant was equally exposed to outside of and unrelated to his employment.
In reaching its conclusion, the Appeals Court noted that three cases,
which had similar facts and were recently abrogated after the 2005 amendments
were applicable. Those cases involved the definition of arising out of
the course of employment and involved activity that was performed routinely
outside of employment life. In each of those cases, the claimant was found
to have sustained a compensable injury, however, since the cases were now
abrogated, the Court of Appeals reasoned that the legislature intended
to overrule the prior case law interpretations of arising out of the course
of employment. Therefore, the Appeals Court reasoned that walking, as Miller
did, was a risk that was not related to his employment.
Although the Court of Appeals did not overrule the Commission, because
of the general interests and importance of the issues, the case was transferred
to the Missouri Supreme Court and is still in appeal.
Calculation of Average Weekly Wage Top
Winfred Caldwell, Deceased, Lynda Lorenz Caldwell and Samuel Caldwell
v. Delta Express, Inc. and American Home Assurance c/o AIG Claims Services,
Inc., Case No. SD29473 (Mo. App. S.D. 2009).
FACTS: Winfred Caldwell died as the result of a work related accident.
His wife and son filed a Workers’ Compensation claim against the
employer, and at a hearing, the ALJ awarded benefits. In determining the
average weekly wage, the ALJ included the deceased’s per diem payments
in the computation of that amount.
The Employer argued that the per diem payments were reimbursement for
special expenses incurred by the employee as the result of the nature of
his employment and not paid as wages.
Theresa Carr, driver payroll clerk for the Employer, testified that per
diem payments were a federally set amount that the driver was allowed to
earn and not be taxed. She noted that a driver was entitled to earn per
diem payments if he was on the road for at least 24 hours, and described
per diem payments as “just an amount of money that the employee earned
that we did not tax”.
ISSUE: Should per diem payments be included into calculations for average
weekly wage benefits.
HOLDING: The Court of Appeals reviewed Section 287.250.2 that provides
the purposes of determining gross wages, the reasonable value of board,
rent, housing or lodging or similar advance received from the employer
shall be used. The Court reasoned that the Commission’s determination
that per diem payments were gross wages since it was used for meals,
motel stays, or however the employee saw fit. It also noted that the
Commission found the testimony of the driver payroll clerk to be credible,
and in light of that, the Court of Appeals upheld the Commission’s
decision.
Credibility of Experts and Witnesses Top
Rebecca Garber v. Dr. Pairote Jaroonwanichkul, d/b/a Branson Oncology,
and the Treasurer of Missouri, as the Custodian of the Second Injury Fund,
Case No. SD29250 (Mo. App. S.D. 2009).
FACTS: The Employer admitted that Rebecca Garber suffered compensable
neck, face, and shoulder injuries from a workplace fall, but denied the
accident caused leg and back complaints. At a hearing before an ALJ, the
claimant’s treating doctor and retained expert linked the claimant’s
leg and back complaints to her workplace fall. The Employer’s expert
differed.
The ALJ evaluated the conflicting medical testimony and found in the claimant’s
favor. The Employer appealed to the Labor and Industrial Relations Commission,
which affirmed the ALJ’s Award.
ISSUE: Whether there was competent and substantial evidence to support
the Commission’s decision to award disability and future medical
benefits.
HOLDING: The Commission held that only when the Award is contrary to the
overwhelming weight of the evidence will it overturn the Commission’s
decision. It noted that it will affirm the choice between conflicting medical
opinions unless the record reflects that there is substantial evidence
to support a different decision.
In the case at bar, the Appeals Court noted that there were conflicting
medical opinions on causation. Both the claimant’s treating doctor
and her retained expert found that her injuries were related to her work
place fall. The Employer’s doctor did not connect the injuries to
the work place fall, although, the Court of Appeals noted that the Commission
provided a detailed summary as to why it found the claimant’s doctors
more believable and credible.
The Court found that the Commission had sole discretion to make the credibility
determination, therefore the Court of Appeals found that the Award was
competent.
The Employer further argued that it should have been allowed to offer
additional testimony. Specifically, it wanted five physicians to examine
the claimant, however, the Commission previously rejected the request.
The Employer argued that the rejection of this request was an error. The
Appeals Court found that the Commission’s decision to hear additional
evidence is simply discretionary, and the Appeals Court will only overturn
that discretionary decision only if the Commission acted arbitrarily or
abused that discretion.
The Appeals Court reasoned that the Commission explained three reasons
for denying the Employer’s Motion, and indicated that the Commission
found that the Motion was denied since the Employer’s request for
having five physicians examine the claimant was unreasonable.
Doris Lacy v. Federal Mogul, St. Paul Travelers Company, and Treasurer
of the State of Missouri asCustodian of the Second Injury Fund, Case No.
SD28726 (Mo. App. S.D. 2009).
FACTS: Doris Lacy worked for her employer since 1987 as a groover machine
operator. Her job required her to bend and lift pistons out of baskets.
In 1999 she was involved in a car accident that was not work-related.
In that accident, she sustained a C2 vertebrae fracture and received treatment
from Dr. David Yingling, who referred her to Dr. Mohammad Shakilil. In
January 2000 Dr. Shakilil performed a cervical facet rhizotomy. After that
procedure, the claimant returned to work. She had been off work for ten
months as a result of that car accident.
When the claimant returned to work in January 2000 she was able to perform
the same job that she did before the accident.
Between January 2000 and May 2001 the claimant continued to regularly
follow-up with her primary doctor for consistent complaints of neck pain.
She was prescribed Flexeril, Restoril, Paxil and Lortab to treat her symptoms.
On or about May 17, 2001 the claimant’s foot slipped out from underneath
her as she was walking through oil and water substances on the plant floor.
She landed on her buttocks and felt a sharp pain in her low back and neck.
The claimant’s supervisor, Tony Campbell, asked if the claimant wanted
to see a first responder or go to the doctor. The claimant advised that
she would be okay and was not hurt. She returned to her machine and finished
her shift.
Ultimately, she filed a workers’ compensation claim and alleged
that the May 2001 fall caused her to sustain injuries to her low back and
neck. She further alleged that she was permanently and totally disabled
due to a combination of her injuries from the 1999 car accident and her
work injury.
The employer presented Dr. Wagner’s testimony at hearing. Dr. Wagner
opined that the claimant’s symptoms were related to her prior cervical
fracture and pre-existing degenerative disease. He reviewed all of her
medical records and noted that there was a significant lapse in time between
her fall at work and her subsequent treatment. He further indicated that
since she had no acute symptoms at the time of the fall, she did not sustain
any permanent disability from the 2001 work fall.
ISSUE: Was the Commission’s decision to rely upon Dr. Wagner’s
testimony improper.
HOLDING: The claimant argued to points on appeal. The first challenged
the sufficiency of evidence and alleged that Dr. Wagner’s testimony
did not meet the requirements necessary for admission of expert testimony.
The Court of Appeals noted that the claimant’s argument was not
preserved for appeal, because the claimant did not timely object to the
admission of Dr. Wagner’s opinions at the time of hearing.
For the second point, the claimant argued that the Commission did not
have sufficient evidence to support its findings. The Appeals Court reviewed
the Commission’s record and noted that it was undisputed that Dr.
Campbell’s office notes prior to July 16, 2001 contained no reference
to the claimant falling at work. The absence of that information raised
a legitimate credibility issue, which the Commission resolved adversely
to both claimant and Dr. Campbell. The Appeals Court found that the Commission,
as a finder of fact, was free to believe or disbelieve evidence presented.
Award of Attorneys Costs Against An Employer Top
Lois Nolan v. Degussa Admixtures, Inc., Case No. SD29282 (Mo.App. S.D.
2009).
FACTS: In July 2005 Timothy Nolan was driving a company pickup for Degussa
when he lost control and was ejected from the vehicle. He was transported
to a hospital where a clinical drug test returned positive for methamphetamine
and marijuana. He died three months later, and his widow and her children
sought Workers’ Compensation benefits.
In light of the positive drug test, which was a violation of company rules,
the Employer withheld benefits and denied liability. At a hearing, the
ALJ found the Employer’s defense and denial unreasonable, and it
ordered it to pay a portion of the claimant’s attorney’s fees.
ISSUE: Whether the ALJ’s Award of costs against the Employer was
reasonable.
HOLDING: The Appeals Court held that there was sufficient competent evidence
to support a finding that the Employer acted reasonably in withholding
benefit payments. The claimant argued that the Commission erred by allowing
both parties to brief and orally argue the cost issue. In addition, the
claimant argued that it was reasonable to award costs, since the defense
of withholding payments was without merit.
The Appeals Court found that the Commission was free to allow both parties
to brief and orally argue the cost issue. In addition, the Commission had
discretion to review all evidence and found that the employer acted reasonably
in withholding benefit payments. The Appeals Court found that it would
only reverse a decision if it was so clearly against the logic of the circumstances
and unreasonable that it shocked one’s sense of justice. It noted
that it was not unreasonable for an Employer to withhold benefits after
receiving a positive drug test result.
Finding of Permanent Total Disability Against Second Injury Fund Top
Ronald Clark v. Harts Auto Repair, Case No. WD69767 (Mo. App. W.D. 2009).
FACTS: Ronald Clark was performing electrical work on the roof of his employer
on May 22, 2001, when the ladder that he was climbing slipped, causing
him to fall about 12 feet to the ground. He was rendered unconscious,
and his right leg landed in a large barrel. Shortly after the accident,
the claimant underwent surgery on his right leg, which consisted of a
four compartment fasciotomy. In the following months, he continued to
experience persistent swelling, infection, pain, headaches and depression.
He testified at trial that he underwent a total of nine surgeries to
his right leg, and nine epidural injections.
Ultimately, the claimant filed a formal Claim for Compensation with the
Division and the employer filed an Answer denying the claim.
The Commission found that the claimant was permanently and totally disabled.
It then ruled the Award also included compensation for future medical care
and it assessed interest on any past due compensation. It also awarded
the claimant’s attorney’s fees and costs for the proceeding
against the employer, since the ALJ found the employer defended the case
without reasonable grounds.
ISSUE: Whether there was sufficient and competent evidence to support
a finding of permanent total disability against the Second Injury Fund.
HOLDING: The Appellate Court affirmed the Commission’s decision
to deny benefits. The Court noted that the question of whether a person
is permanently and totally disabled turns on the facts and evidence. It
explained that the Commission is the trier of fact and is given deference
to weigh the credibility of the testimony presented at a hearing. A reversal
will only occur if the evidence clearly shows that the Commission’s
decision was completely erroneous.
The Court went on to define total disability as “an inability to
return to any employment and not merely an inability to return to the employment
at which the employee was engaged at the time of the accident”. It
noted that the test is reasonableness and the claimant has a burden to
establish that he is permanently and totally disabled by introducing evidence.
In the present case, the Court recognized that the Commission’s
record revealed that ten different physicians testified to the claimant’s
ability and present physical condition. Of those ten physicians, six testified
that the claimant was permanently and totally disabled and not able to
work. One, testified that he could not assess the claimant’s severity
of his pain disorder. The remaining three, on which the employer’s
attorney relied advised that he could perform sedentary work, but should
not drive or operate heavy machinery while taking prescription medications.
The employer suggested the Commission’s Award did not properly weigh
and consider the testimony of three treating physicians. The Appeals Court
found that the argument was without merit, since the Commission actually
explicitly considered all contradictory opinions before determining the
most critical and competent evidence, which supported the finding that
the claimant was rendered permanently and totally disabled by work injuries.
The employer further argued that the Award of attorney’s fees and
costs was not supported by sufficient competent evidence. The Court of
Appeals noted that the facts presented to the ALJ, which were adopted by
the Commission, found that the employer’s attorney admitted that
the employer would not respond to his phone calls when he sought authority
to make a settlement offer to the claimant. In fact, the employer’s
attorney further admitted that the employer refused to accept calls when
he tried to relay settlement demands from the claimant. The ALJ concluded
the refusal to provide any settlement authority where the employer had
not only admitted accident and liability, but its own evidence was clearly
contrary to the “zero offer” position, amounted to an unreasonable
defense. It denied the claimant’s second point of appeal.
Applicability of Mental Stress Claims Against Employers Top
Neil Schaffer v. Litton Interconnect Technology and Insurance Company
of the State of Pennsylvania, Case No. SD28995 (Mo. App. S.D. 2009).
FACTS: Neil Schaffer began working for Litton in 1989 as an environmental
engineer. This position required him to work approximately 50 hours a week
and he testified that he occasionally took work home, but that he did not
regularly work weekends or holidays. In 1997, he received a promotion to
environmental safety manager. He was assigned additional responsibilities
and his pay was increased. The claimant described his additional duties
as maintaining safety policies and procedures, providing safety training
and inspections, and working on the emergency response team. He was also
given responsibility for a clean-up site behind the company’s main
facility. The responsibilities included safety oversight for two additional
plants, one in Massachusetts and one in California. In the new managerial
position, he worked over 70 hours a week, and worked during most vacations
and weekends. He advised that he had to miss lunch and that his wife began
going to the office with him to help him with his typing.
While at his home on May 18, 2002, the claimant was preparing to weed
his yard when he experienced a rapid and irregular heat beat. He was taken
to an emergency room where a physician concluded that he experienced atrial
fibrillation. The claimant had experienced incidents of rapid heart rate
prior to the May incident, due to a paroxysmal atrial tachycardia (PAT).
He was diagnosed with that condition in 1973.
Following his fibrillation, his doctor recommended that he limit his work
to performing low stress duties and work fewer than 40 hours a week. He
complied with his doctor’s recommendations from July 2nd to July
22nd. After that, he found that he experienced increased symptoms of anxiety
and depression each time he returned to work. Subsequently, he requested
his primary care physician, Dr. Lyons, to recommend another couple weeks
of medical leave. Ultimately, Dr. Lyons recommended permanent retirement.
Upon retirement, the claimant filed a Workers’ Compensation claim
alleging that he was required to work excessive numbers of hours per day,
which caused stress resulting in irritation to his heart, anxiety, and
depression.
ISSUE: Whether the claimant met his burden of proving by objective standards
and actual events that he suffered from work-related stress.
HOLDING: The Appeals Court affirmed the Commission’s decision and
found that the claimant did not prove that his anxiety and heart conditions
were caused by extraordinary work conditions. In doing so, the Court found
that the claimant failed to present evidence that his duties were greater
than those of other management personnel at Litton. It also found that
the evidence established that the claimant had many stressors outside of
his employment. He experienced stress from various family and personal
problems including his father’s death and damage to property that
he owned. There was also expert medical testimony that supported the Commission’s
finding that the claimant’s disorder and symptoms were not caused
by his employment.
The Court of Appeals noted that there was conflicting medical testimony
regarding whether the claimant’s disorder and symptoms were caused
by his employment. It found that the decision to accept one of two conflicting
medical opinions was an issue of fact for the Commission. Therefore, it
found sufficient evidence to support the Commission’s finding that
the claimant’s work-related stress was not extraordinary or unusual
compared with other similar positions in his field and similar management
positions with the employer.
Cases Interpreting Schoemehl Top
Homer Lawson, Ralph Tyson, and Oscar Graves v. Treasurer of the State
of Missouri as Custodian for the Second Injury Fund, Case No. SD28541,
SD28543 and SD28545 (Mo. App. S.D. 2009).
FACTS: Homer Lawson, Ralph Tyson and Oscar Graves were awarded their respective
disability benefits prior to their deaths. At the time of the Awards, no
determination was made as to whether any of the disability recipients had
any dependents. In addition, none of the orders were appealed. The Awards
for each individual became final 30 days after they were entered pursuant
to Section 287.495. Subsequently, upon the deaths of each recipient, the
Commission entered orders terminating disability benefits pursuant to Section
287.470.
Shortly after Lawson, Tyson and Graves died, the Supreme Court of Missouri
issued a decision in Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900
(Mo. banc 2007), whereby it held that dependents of disability recipients
could recover benefits upon the recipients death if the death was unrelated
to the work place injury.
In light of Schoemehl, the widowers filed Motions with the Commission
asking it to set-aside previous orders terminating disability benefits
and reinstate the benefits. The Commission dismissed their requests on
the grounds that it lacked subject matter jurisdiction.
ISSUE: Whether in light of Schoemehl, a Final Award could be re-opened
and permanent total disabilities reinstated on behalf of a dependent.
HOLDING: The Court of Appeals noted that Schoemehl, and the cases interpreting
them have had a colorful history. Since Schoemehl was handed down, the
legislature amended several sections within the Workers’ Compensation
Law with the express intent “to reject and abrogate the holding
in Schoemehl in all cases citing, interpreting, applying or following
the case”.
Shortly after the amendments were made, the Supreme Court issued a decision
in Strait v. Treasurer of Missouri that did not overrule Schoemehl but
limited its application to cases in which the injured employee’s
claim was still pending at the time of his or her death.
Following Strait, the Western District issued a decision in Bennett v.
Treasurer of Missouri. In Bennett, an injured employee filed a Motion with
the Commission seeking to add her husband as an additional party to her
Workers’ Compensation claim in which she had previously been awarded
disability benefits. Relying on the recent Schoemehl amendments and decision
in Strait, the Commission found that it did not have authority to hear
the claim.
The Court of Appeals found that the situation and the instant cases of
Lawson, Tyson, and Graves is substantially similar. All of the disability
recipients’ claim were final prior to Schoemehl and were therefore
not pending between January 7, 2007 and June 26, 2008. As a result, the
Commission was correct in ruling that it had no statutory authority to
reopen the disability recipients’ final awards and reinstating benefits.
Glennda Taylor v. Ballard R-II School District, and the Treasurer of the
State of Missouri as Custodian of the Second Injury Fund, Case No. WD69406
(Mo. App. W.D. 2009).
FACTS: Glennda Taylor began working as a school bus driver in October
2002. After a few months on the job, she developed pain in her hip, leg,
and low back due to the rough country road and poor suspension system on
the bus. On January 29, 2004 the claimant underwent surgery to her back,
however complications occurred requiring removal of one of her kidneys.
The claimant testified that the procedure failed to relieve her of pain
in her leg and lower back. She ultimately filed a claim with the Division
alleging permanent total disability. That claim noted that she was previously
diagnosed in 1990 with depression.
At a hearing before an ALJ, the claimant was awarded permanent total disability
based upon her medical doctor’s conclusion that she suffered “failed
back syndrome,” and her psychiatric evaluation that indicated she
suffered from ongoing depression. The ALJ found the employer liable and
entered an order for payment of $49,400.37 for past medical bills and $210.85
per week as permanent total disability benefits on July 2, 2007. The Second
Injury Fund was dismissed finding no liability.
On the same day that the ALJ handed down the Award, the claimant committed
suicide by taking an overdose of drugs. The death certificate listed “drug
overdose” as the immediate cause of death and “depression” in
a separate section requesting “other significant conditions contributing
to death but not resulting in underlying cause.”
On July 18, 2007, the employer appealed to the Commission and the claimant’s
widower, Marvin, moved to substitute himself as a party. Marvin attached
a copy of the death certificate to the Motion and stated that he was her
surviving spouse and sole dependent. He asked the Commission to substitute
him as successor to her rights, whatever those rights may be. On February
1, 2008, the Commission granted the Motion, entered a final award, and
noted that as a procedural matter Marvin was entitled to pursue her claim.
The Commission did not expound as to whether Marvin was entitled to payment
of the disability benefits under Section 287.230.
From that, Marvin appealed to the Court of Appeals to clarify whether
he, as a surviving spouse, is entitled to permanent and total disability
benefits for his lifetime pursuant to the Missouri Supreme Court’s
decision in Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d
900 (Mo. Banc 2007).
ISSUE: Whether a surviving dependent, who filed an appeal within 30 days
after a Final Award, is entitled to continuation of permanent total disabilities
for his lifetime in light of Schoemehl.
HOLDING: In his sole point, Marvin contends the Commission erred because
it failed to address whether he, as a surviving dependent, is entitled
to continuation of the claimant’s permanent total disability benefit
Award for his lifetime in light of Schoemehl.
The Appellate Court noted that Schoemehl was applicable in this case.
It reasoned that after Schoemehl was decided, several cases were denied
survivorship benefits on procedural grounds. The Court of Appeals opined
that when a claim for survivorship benefits was not brought prior to the
Commission’s Final Award or on appeal within 30 days after the Award,
the survivorship claim was ruled untimely as a procedural matter because
the case was no longer “pending.”
The Court found that Marvin provided the Commission timely notice of his
spouse’s death when he filed a Motion to Substitute Parties. The
Court held that the Commission failed to make findings on Marvin’s
survivorship rights in the Final Award and they were, despite its awareness
of his spouse’s death.
Ultimately, the Appeals Court upheld the Commission’s decision to
award permanent total disability benefits and reverse and remanded the
case with an order to grant such benefits to the claimant’s spouse
for his lifetime.
Commission Trends Top
Over the last three months, the Commission has ruled on forty cases and
reversed or modified only five of those cases. Of those, only three were
changed regarding liability against the employer and insurer.
In Clifford Conrad v. Jack Cooper Transport, Liberty Mutual Insurance Company,
and Treasurer or Missouri, as Custodian of the Second Injury Fund, Inj.
No. 04-061506, the Missouri Court of Appeals issued an opinion reversing
the February 8, 2008 Award and decision of the Labor and Industrial Relations
Commission. In doing that, the Court remanded the matter back to the
Commission for proceedings, and requested that the Commission consider
its error in denying employee future medical benefits. Pursuant to the
Court’s mandate, the Commission reviewed the evidence and considered
the whole record and found that the ALJ’s Award of future medical
benefits should be affirmed. The testimony of Dr. Jones established that
the employee’s work injury was one of the reasons that he would
need future medical treatment, accordingly, the claimant has shown that
future medical treatment is reasonably necessary to cure and relieve
him of the effects of his work injury.
In Ronald Kliethermes v. ABB Power T&D, Pacific Employer’s Insurance
Company, and Treasurer of Missouri, as Custodian of the Second Injury Fund,
Inj. No. 00-128224, the Missouri Court of Appeals for the Western District
issued an opinion reversing the Commission’s decision and remanded
the matter back to the Commission for further proceedings regarding the
denial of benefits. Pursuant to the Court’s mandate, the Commission
reviewed the evidence and considered the whole record in light of the opinion
of the Court and reversed the ALJ’s Award and found that the claimant
sustained an injury in the course and scope of his employment. In doing
so, the Court of Appeals noted that the evidence established that the claimant
sustained a change in pathology as the result of an electrical shock, that
caused increased symptoms of heart problems despite having a pre-existing
arrhythmia. Since he had more episodes after the work event, the Commission
found that he sustained a compensable work related accident.
In Sharon Snyder v. Consolidated Library District, Guaranty Insurance
Company, Inj. No. 06-043514, the Labor and Industrial Relations Commission
reversed the ALJ’s Award that granted compensation. In doing so,
the Commission found that the employee’s testimony was simply not
credible. It stated that it was not bound to the ALJ’s decision on
credibility. The Commission noted that the claimant never informed her
employer that she had a work injury and never completed an Incident Report.
She also went to seven visits with a doctor, and did not provide a history
of suffering an injury at work. The Commission found that the employer’s
witnesses were more credible than the claimant therefore it reversed the
awarded benefits.
|