MISSOURI CASE LAW UPDATE Spring Client Seminar

Transcription

1 MISSOURI CASE LAW UPDATE 2013 Spring Client Seminar Presented by: Karie Casey, Member Michelle Symank, Senior Associate Prepared by: Sarah Kraft, Senior Associate Evans & Dixon LLC 211 North Broadway, Suite 2500 St. Louis, Missouri ; Fax

2 MISSOURI CASE LAW UPDATE Medical Causation; 15% Safety Penalty Section Hornbeck v. Spectra Painting Inc., 2012 Mo. LEXIS 159; 370 S.W.3d 624 (Mo. 2012) Facts: Claimant was a drywall taper who suffered a work-related accident when he fell ten feet from a ladder onto a concrete surface. Claimant argued at Hearing that he required additional medical treatment and that the Employer had violated the Scaffolding Act. The ALJ found the claimant to be at MMI and that the Employer was not in violation of the Scaffolding Act. The Claimant appealed to the Commission which also found the Claimant at MMI. Unlike the ALJ, the Commission found the Employer had violated the Scaffolding Act and levied a 15% penalty against the Employer thus enhancing the Claimant s award. The Commission determined Employer was liable for 20% left biceps, 5% each foot, 2.5% body as a whole and assessed the 15% penalty; and the Second Injury Fund was liable for 42.4 weeks. The Claimant and Employer appealed to the Eastern District Court of Appeals. The Claimant appealed the denial of additional medical and the Employer appealed the levying of the penalty. In reply, the Claimant argued that the Employer was responsible for a 15% penalty of the Second Injury Fund Award and not just on the Award against the Employer. The Claimant argued that the Commission erred in finding him at maximum medical improvement. Claimant attempted to invoke Tillotson arguing that the proper standard for determining if medical treatment was indicated was if the Claimant could prove that the treatment flowed from his compensable work injury. The Court of Appeals affirmed the Commission decision determining that the Claimant was at MMI. Regarding the penalty, the Court of Appeal concluded the penalty applied solely to the Award against the Employer. The Claimant appealed both points to the Supreme Court. Holding: The Supreme Court accepted transfer, and affirmed the Court of Appeals. First, with regard to the 15% penalty being applied to the Second Injury Fund Award, the Court concluded that it would be inappropriate to order the Employer to pay a penalty on the Second Injury Fund Award since it was intended to reflect his preexisting condition. With regard to the Claimant s Tillotson argument, the Court declined to award further medical benefits and affirmed the Commission s decision that Hornbeck had not shown that his work-related injury was the prevailing factor in causing the resulting medical condition. In explaining its position, the Court focused on how there was not sufficient evidence to conclude that medical treatments were reasonably necessary to cure and relieve the effects of the compensable work injury. The Court declined remand to Commission for reconsideration in light of Tillotson.

3 Safety Penalty Carver v. Delta Innovative Services, 2013 Mo. App. LEXIS 129 (Mo.App.W.D. 2013) Facts: Claimant suffered a back injury while carrying a 100 pound roll of roofing material up a ladder. The Commission awarded the Claimant permanent total disability but reduced the award by 50%. It found Carver s failure to obey his Employer s Three Point Contact Ladder-Safety Rule justified a 50% penalty under Section The Claimant appealed arguing that the award did not contain sufficient competent evidence to support the reduction of his award. The Court of Appeals refused to address the merits of Carver s appeal and remanded the case to the Commission mandating that the Commission provide an issuance of further factual findings concerning whether Delta proved that the reduction was justified in this case. Essentially, the Court of Appeals determined that the Commission s findings of fact were inadequate to review the case on appeal. The Commission then issued additional findings after a mandate concluding that the Employer had not made a reasonable effort to cause his Employee to obey the rule, but the Commission stopped short of making a new determination as to whether or not the 50% reduction should still exist. Upon additional review, the Court of Appeals again remanded the case to the Commission to issue a final award consistent with its additional findings. On remand the second time, the Commission held: Employer did not take any steps or make any effort to ensure that the Three Point Contact Rule was followed. Further, they determined that the Employer failed to put forward evidence to allow for a factual finding that the Claimant s injuries were caused by his failure to obey the rule. For that reason, they found that there was no penalty against the Employee s award of compensation. Schoemehl - Dependent Benefits Revisited Gervich v, Condaire, Inc., 2012 Mo. LEXIS 162; 370 S.W.3d 617 (Mo. 2012) Facts: The Claimant suffered a work-related accident in 2006 and alleged permanent and total disability as a result of that accident. While the case was pending, the Claimant died from causes unrelated to his work injury. Following his death, a hearing was held where the ALJ found that the claimant was permanently and totally disabled. The Commission ruled that the Claimant s widow was not entitled to receive ongoing permanent total disability benefits per Schoemehl because her rights as a dependent did not vest until her husband died in His death was subsequent to the 2008 Statutory Amendments that eliminated a dependent s right to continuing permanent total disability benefits when the injured worker dies of unrelated causes. The Claimant s widow appealed the decision to the Court of Appeals and transfer to the Supreme Court was granted after an opinion at the Court of Appeals.

4 Holding: The Supreme Court ruled that the Claimant s widow had a right to receive continuing permanent total disability payments as a dependent under the statute that was in effect on the date of her husband s work-related injury and not the statute in effect at the time of his death. The 2008 Statutory Amendment changes applied only prospectively and therefore do not apply to the widow s claim for benefits. The case reaffirms that dependent status and right of recovery is determined at the time of injury and not death. Second Injury Fund/Insolvency Skirvin v. Treasurer State of Mo., 2013 Mo. App. LEXIS 84 (Mo.App.W.D.2013) Facts: This is an appeal from an Entry of a Writ of Mandamus which ordered the Missouri Treasurer and the Director at the Division of Workers Compensation to pay permanent total disability in favor of the Claimant, Raymond Skirvin. The procedural background is that the Claimant was awarded permanent total disability benefits against the Second Injury Fund in May Following the award, the Claimant had been contacted by the Missouri Attorney General and advised that the Second Injury Fund was unable to make the payments due to current balance and cost projections for the remainder of the fiscal year. Skirvin filed a petition for Writ of Mandamus in the Circuit Court of Marion County in Missouri and after a hearing, the trial Court granted the Claimant s Writ of Mandamus ordering the Second Injury Fund to begin paying the Claimant s permanent total disability compensation. The treasurer and director appealed to the Court of Appeals Southern District arguing that the Second Injury Fund was insolvent. Holding: The Court of Appeals concluded that the Claimant was not entitled to a mandamus to compel full payment of his award and vacated the Writ of Mandamus. In coming to this conclusion, the Court determined that the Second Injury Fund was legally insolvent because it did not have sufficient funds on hand to pay all of its current and anticipated obligations and because neither the director nor the treasurer had the statutory authority to generate adequate funding to satisfy the Second Injury Fund s obligations. In coming to its conclusions, the Court pondered the possible unconstitutionality of both the surcharge cap and the exclusivity of the Second Injury Fund. In addition, the Court considered the concept that the ultimate obligation for payment of the Second Injury Fund lies with the state of Missouri which is not insolvent. For these reasons and because of the general interest and importance of the issues involved in this case, the Court of Appeals then transferred the case to the Missouri Supreme Court where it is now pending.

5 Second Injury Fund Liability/Threshold Buhlinger v. Treasurer of Mo as Custodian of the Second Injury Fund, 2012 Mo. App. LEXIS 1212 (Mo.App.E.D.2012) Facts: In this case, the Claimant suffered a work-related injury when he hit his head on a crossbar and lost consciousness. As a result of the accident, he sustained injuries to his neck, back, and left elbow. At hearing, an ALJ awarded him PPD of 27.5% body as a whole referable to the neck, 5% body as a whole for his concussion, and 5% of the left elbow. He also found that the Claimant had pre-existing PPD of 17.5% of the left ankle. When calculating his overall disability, the ALJ included the 5% body as a whole for the concussion and the 5% of the left elbow. The ALJ then applied a 10% enhancement factor to that overall disability which included those two 5% findings and ordered the Fund to pay the 10% enhancement factor for all of those injuries. The Fund appealed the award to the Commission arguing that the ALJ erred by including the concussion and left elbow injuries since those two injuries alone did not meet the threshold set forth in Section The Commission affirmed the award of the ALJ arguing that the threshold set out in is the first step to determine whether the Claimant has sustained a disability significant enough to implicate the Second Injury Fund. Once the Court has determined that the Second Injury Fund is implicated All disabilities are considered in the calculation of the Second Injury Fund liability. The Second Injury Fund appealed to the Eastern District. Holding: The Eastern District found that the Commission erred in its interpretation of the statutory language. The Court concluded that the statutory language does not authorize consideration of below threshold disabilities when calculating Fund liability. However, the Court transferred this case to the Missouri Supreme Court, where it is pending, because of the general interest importance of the issues contained. Late Answers Taylor v. Labor Pros L.L.C., 2013 Mo.App. LEXIS 30 (Mo.App.W.D.2013) Facts: Claimant suffered a left eye injury. The Commission found the Claimant sustained a 30% permanent partial disability to his left eye. Claimant filed an appeal to the Western District of the Missouri Court of Appeals arguing that because the Employer failed to timely answer his Claim for Compensation, the Commission should have deemed admitted all facts alleged in the Claim for Compensation. Within his claim, Taylor alleged that he suffered a 75% permanent partial disability to his left eye. Because of the late answer, Taylor argued that the Commission was bound to find that he had suffered a 75% permanent partial disability because that was a deemed admitted fact due to the late answer. Holding: The Court of Appeals found that while the failure to timely answer resulted in the factual statements of the claim being admitted, it did not result in the admission of legal conclusions. The Court provided examples of legal conclusions that would not be

6 deemed admitted such as whether the injury arose out of the course of employment. In this case, the Court found that it was in the exclusive province of the Commission to determine matters of disability. This included the degree of disability resulting from an injury and the Court stated that A disability determination alleged within a claim is not to be deemed admitted nor is the Commission bound by it. The Court concluded that to do so would go beyond the anticipated scope of regulation in light of its use of the standardized claim since it does not include a section for disability percentage estimation and that to do so would usurp and undermine the special province of the Commission in determining disability percentages. T.H. v. Sonic Drive In of High Ridge, 2012 Mo. App. LEXIS 1585 (Mo.App.E.D. 2012) Facts: In this case, Claimant filed a Claim for Compensation alleging injuries to her body and psychiatric injury as a result of a sexual assault at her employment. Within her claim form, the Claimant plead for her average weekly wage that she was at the max rate. The Employer failed to timely file its answer to the Claim for Compensation. The Commission found that the Claimant suffered 45% disability to the body as a whole for her post traumatic stress disorder and depressive disorder. They also found that the Claimant was at the minimum rate of $40.00 per week because the Claimant failed to meet her burden of proof regarding average weekly wage and that her claiming of max rate was not a factual allegation but a legal conclusion which the employer did not admit by filing an untimely answer. Employer appealed that she did not meet her burden of proof that she suffered an accident, and that there was no medical causal relationship between the alleged injury and her psychiatric condition. The Claimant filed a cross appeal arguing that the Commission erred in finding that she was at the minimum rate of compensation and that the Commission should have concluded that she was at the maximum rate based on the untimely filing of the answer. Holding: The Court denied the Employer s appeal indicating that there was sufficient competent evidence to support the Commission s award of permanent partial disability to the Claimant. With regard to the Claimant s cross appeal, the Court found that the wage rate is a question of fact and that when the Employer failed to file a timely answer, the wage rate as stated on the Claimant s Claim for Compensation was to be deemed as admitted by the Employer. The Employer argued that since the Claimant alleged she earned a max rate, it should be distinguished from prior cases where a specific dollar amount had been listed on the Claim for Compensation. The Court was not persuaded by this argument since it is undisputed that the maximum wage rate for the time period of the Claimant s injury was a specific dollar amount of $

7 Temporary Awards Johnson v. Land Air Express, Inc., 2012 Mo.App LEXIS 1642 (Mo.App.W.D.2012) Facts: Claimant worked as a dock worker and alleged an injury while operating a forklift. The Claimant filed two Claims for Compensation; one alleging a discrete accident and the other alleging repetitive trauma. The ALJ found that the Claimant had suffered a work-related accident but did not suffer an occupational injury. The Employer had denied all liability to that date and provided no treatment and care. The ALJ entered a temporary award for additional treatment and care for the Claimant. Employer appealed the ALJ s decision to the Commission, but simultaneously began tendering treatment and care per the ALJ s award. The Commission overturned the decision of the ALJ and found that the Claimant had not suffered a discrete accident. The Claimant appealed the Commission s decision to the Court of Appeals arguing that the Commission did not have the authority to enter a final award where a temporary award had been issued by the ALJ. Holding: The Court affirmed the ruling of the Commission noting that the existing case law holds in general that an award designated as temporary or partial is not appealable, but that there are two exceptions to this general rule. The first is where the award is an award of permanent total disability benefits pursuant to or when the Appellant contends that the Claimant is not entitled to any award at all and the Employer has denied all liability. The Court found that since the Employer had denied all liability, the Commission had the statutory authority to review the Employer s appeal and issue a final award after the reviewing the ALJ s determination in the hardship hearing. While the Court was sympathetic to the Claimant who argued that he had unresolved issues related to outstanding medical bills, the Court indicated that they could find no clear legal basis on which to say the determination was not a final award. White v. Anderssen Mobile X-Ray Serv., 2012 Mo.App. LEXIS 1584 (Mo.App.E.D.2012) Facts: Claimant worked as a staff technologist for the Employer and drove a mini-van provided by the Employer. As part of her job duties, she was required to call into the Employer s office before she left her home to determine whether she should go straight to the office or go to a patient assignment. On the date of the accident, the Claimant was driving into work in the Employer s van. She was struck by another vehicle and suffered injuries. At issue at hearing was whether the Claimant s injuries arose out of it in the course of her employment. The ALJ determined that because the Claimant had to call into work before she left home, she was already working and fulfilling her job duties at the time of the accident. The Commission confirmed the ALJ s decision and the Employer appealed to the Eastern District. Holding: The Court of Appeals declined to consider the Employer s appeal since the ALJ and the Commission s awards were temporary awards. The Employer argued that because they had denied all liability this was an exception to the general rule that

8 temporary awards are unappealable. In citing Norman v Phelps County Regional Medical Center, the Eastern District declined to apply the exception to this general rule. They found that this was unappealable from the Commission s temporary partial award and dismissed the appeal. Weight of Evidence Pennewell v. Hannibal Reg l Hosp., 2013 Mo.App LEXIS 111 (Mo.App.E.D. 2013) Facts: Claimant was a staff physical therapist for Hannibal Regional Hospital. She suffered a work-related injury to her low back in July 2006 and ultimately underwent three surgeries. Her treating physician found her to have suffered permanent nerve damage as well as severe complications from her earlier surgeries. The Claimant underwent pain management and continued to do so at the time of the hearing. The ALJ awarded benefits to the Claimant including a finding that she was permanently and totally disabled. The Employer appealed this decision to the Commission who also adopted the findings of the ALJ. On appeal to the Court of Appeals, the Employer argued that the ALJ and the Commission failed to weigh the evidence equally and instead gave the benefit of the doubt to the Claimant which was prohibited by the 2005 statutory changes. Further, the Employer argued that the ALJ and the Commission disregarded the Employer s evidence that the Claimant was employable. Holding: The Court ruled in favor of the Claimant and denied the Employer s appeals. First, the Court concluded that there was sufficient evidence to support both parties positions, and that when faced with conflicting evidence, the Commission was tasked with weighing the evidence and making determinations as to credibility. The Court found that the Commission did not give the Claimant the benefit of the doubt and properly weighed the conflicting evidence and ruled in the Claimant s favor. Point two of the Employer s appeal was also denied by the Court. They again found that there was conflicting evidence as to whether or not the Claimant could work and that it was the Commission s decision to accept one of two medical opinions. They found that the Commission placed greater weight on the testimony of Dr. Kennedy and Dr. Feinberg when awarding permanent total disability benefits to the Claimant and that this finding was supported by competent and substantial evidence. Clark v. Mo. State Treasurer as Custodian of the Second Injury Fund, 2013 Mo.App. LEXIS 35 (Mo.App.S.D.2013) Facts: Claimant suffered a work-related accident in May 2003 for injuries he received to his low back, right leg, neck, and left shoulder. The Claimant settled his claim against his Employer based upon 20% body as a whole and sought additional benefits from the Second Injury Fund based on pre-existing injuries including diabetes, injury to his right shoulder, injury to his left shoulder and injury to his wrists. At hearing, the ALJ

9 determined that following the work accident, the Claimant continued to work and suffered two re-injuries. The ALJ concluded that these subsequent injuries could have had a potential effect on his ability to work and that the Claimant s experts, Dr. Musich and Dr. Weimholdt, had not addressed the effect of those injuries on Claimant s conditions. As a result, the ALJ found the Claimant s experts not credible and found the Claimant was not permanently and totally disabled. The Claimant appealed to the Commission who agreed with the ALJ. The Claimant appealed again to the Court of Appeals indicating that the Commission erred in finding that he had not met his burden of proof when the Commission substituted its own opinions as to medical causation for the opinions of uncontradicted medical experts. Holding: The Court found that the Commission was free to reject the Claimant s inferences that Dr. Musich and Dr. Weimholdt considered the subsequent re-injuries insignificant. Further, the Court found that the Commission did not reject uncontradicted medical evidence, but instead they favored the medical evidence from Dr. Petkovich. Further, the Court noted that it was not against the overwhelming weight of the evidence for the Commission to find that he was not permanently totally disabled by the combination of his pre-existing disabilities. Hearing Loss/Weight of Evidence Kersey v. Autry Morlan, Inc., 2013 Mo.App. LEXIS 33 ((Mo.App.S.D.2013) Facts: The Claimant worked as an auto mechanic for Autry Morlan, Inc. in At that time, while utilizing a stethoscope to listen for a possible problem with a car, something popped very loud inside the car s engine and the Claimant s hearing was impaired by the loud noise. The event was immediately reported to the Employer and the Claimant was evaluated by a physician at the Employer s direction the same day. He was later seen by an ENT who referred him to an audiologist where he was fit with hearing aids for both ears. At the Employer s request, Dr. Mikulec evaluated Claimant and found that the Claimant had a long history of noise exposure but his hearing loss fell below the minimum threshold for compensability under the Missouri Statute. The Claimant also had complaints of tinnitus which the doctor did not attribute to the Claimant s work accident noting that the cause of tinnitus is uncertain. At hearing, the ALJ issued a final award denying all compensation. The Commission adopted the ALJ s findings and decision, and the Claimant appealed to the Court of Appeals. In the appeal, the Claimant contended that the Commission erred by deciding that his work accident was not the prevailing factor in causing his hearing loss and tinnitus because it was not supported by sufficient evidence. Holding: The Court found that the Commission did not err by denying the Claim for hearing loss and tinnitus. Specifically, the Court noted that it was the Claimant s burden of proof to show that the work accident caused both his hearing loss and tinnitus and that the record supported the Commission s finding that the Claimant failed to do so.

10 Arising Out of and Course of Employment Johme v. St John s Mercy Healthcare, 2012 Mo. LEXIS 101; 366 S.W.3d 504 (Mo. 2012) Facts: The Claimant was employed by St. John s Mercy Healthcare as a billing representative and her desk was located about 30 steps from the office kitchen where there was a coffee station. While the Claimant was in the kitchen making a pot of coffee, she fell and was injured. At the time of the fall, she was also wearing sandals with a thick heel and a flat bottom. There were no irregularities on the kitchen floor. The ALJ found the accident was not compensable, but the Commission reversed ruling that the accident was compensable under the personal comfort doctrine. The Court of Appeals held the Commission erred in finding Johme s injury compensable under the personal comfort doctrine. The Claimant appealed to the Supreme Court. Holding: Without addressing the personal comfort doctrine, the Supreme Court held that Johme s injury was not compensable in workers compensation because she failed to show that her injury arose out of and in the course of employment under (2). She did not show that it was caused by a risk related to her employment activity as opposed to a risk that she was equally exposed to under non-employment life. Pope v. Gateway to the West Harley Davidson, 2012 Mo.App. LEXIS 1335 (Mo.App.E.D.2012) Facts: Claimant worked for the Employer as an entry level technician with job duties that included inspecting motorcycles, washing motorcycles for customers, test driving motorcycles and performing routine motorcycle maintenance. In addition, his job required at the end of the day to drive motorcycles from the sales lot into both the upper and lower showrooms for overnight storage. He was required by the employer and by law to wear a helmet while moving the motorcycles. On the date of the accident, the Claimant was asked to drive the motorcycles into the showroom. After moving the motorcycles into the showroom, the Claimant walked from the upper showroom to the lower showroom utilizing a small staircase between the two. At that time, he was wearing his work boots and carrying his motorcycle helmet. While descending the stairs, he lost his footing and fell suffering a right ankle fracture and dislocation. The Employer denied that the injury arose out of and in the course of employment arguing that Claimant was equally exposed to the risk that caused the injury in his normal non-employment life. Initially, the ALJ denied the claim, but on appeal to the Commission, the ALJ s decision was reversed, and the Commission awarded the Claimant benefits. The Employer appealed the Commission s decision to the Eastern District. Their sole point on appeal was whether the Claimant s injuries occurred within the course and scope of the employment.

11 Holding: Distinguishing this case from both Miller v Missouri Highway and Johme v St. John s Mercy Healthcare, the Court indicated the Claimant was injured because he was performing his work activities and that while he was descending the stairs, he did so while carrying his motorcycle helmet. They noted Claimant had his helmet with him because of the work activity he immediately performed prior to descending the stairs. The fact that the Claimant had to carry his helmet while descending the stairs increased his risk of falling and sustaining injuries. The Court acknowledged that simply being injured at work is not enough to sustain a compensable work accident. That said, they concluded that the record contained sufficient evidence from which the Commission could have found Claimant s injury had a causal connection to his employment beyond the temporal aspect.