Case Law Updates Simon & Hudson, P.C.

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.

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.