David Taylor v. Contract Freighters, Inc and Missouri State Treasurer, Custodian of the 2 nd Injury Fund., Case No. SD29945 (Mo. App. S.D. 2010).

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1 Medical Causation - Idiopathic Condition David Taylor v. Contract Freighters, Inc and Missouri State Treasurer, Custodian of the 2 nd Injury Fund., Case No. SD29945 (Mo. App. S.D. 2010). FACTS: In this new law case, the claimant was injured in a motor vehicle accident when the truck he was driving for the employer ran off the road. The claimant was driving an 18 wheeler and felt it veer to the right. He overcorrected and the truck ran off the road. The employer alleged that the claimant s injuries were not compensable because the accident was caused by an idiopathic condition which is not covered by the statute. The employer based this argument on the claimant s history of chronic coughing. The Commission agreed that the accident was caused by the cough and that the cough was idiopathic in nature. HOLDING: The Court of Appeals overturned the Commission s decision because there was no medical evidence that the cough that caused the accident was idiopathic. Idiopathic means peculiar to the individual, and all people cough. The Commission would have had to hear evidence that the specific cough that caused the accident was caused by a coughing condition peculiar to the claimant and there was no evidence of that in the record. Medical Causation - New and Distinct Injury Bonita Miller v. U.S. Airways Group, Inc., Case No. WD70840 (Mo. App. W.D. 2010). FACTS: The claimant first reported problems with her bilateral hands in 2002 and was provided conservative treatment for bilateral carpal tunnel syndrome. She was then released from treatment with no limitations in October The claimant continued to perform her normal duties without significant pain or discomfort until late 2006 when she worked overtime. She then requested further treatment in January 2007, two years after being released from treatment. The employer s insurance denied further treatment for carpal tunnel syndrome because it was the same condition she had received treatment for in The claimant then filed three Claims for Compensation, one for a date of injury of 2004, one for 2005, and the other for a date of injury of The claims provided an identical description of the claimant s alleged injury. In June 2008, an ALJ held a hearing on the 2007 claim. The ALJ denied the 2007 claim because it alleged the same injury as the 2004 claim, for which the claimant received treatment. The Commission upheld the denial of compensation because the claimant did not sustain a new and distinct injury because the repetitive trauma was from the same carpal tunnel condition she treated for in The claimant appealed. HOLDING: The Court of Appeals said the Commission s denial of the 2007 claim was appropriate because it was duplicative of other claims that were pending with the Division. The Commission determined that the worsening of symptoms in 2006 or 2007 did not establish a new injury and this was supported by substantial evidence. 1

2 Commission Decision Supported by Substantial Evidence - Unpaid Medical Bills Treasurer of the State of MissouriBCustodian of the Second Injury Fund, v. Donald Hudgins, Case No. WD71423 (Mo. App. W.D. 2010). FACTS: The claimant was injured while working for an uninsured employer. The Commission determined that the Second Injury Fund was liable for the claimant s medical expenses. The SIF appealed, arguing that the award of $29, for medical bills exceeded the amount that was fair, reasonable and necessary because only $5, remained outstanding. The claimant provided evidence consisting of bills totaling $29, and testified the bills were from the work injury. The SIF did not object to the evidence or cross examine the claimant. The SIF did not provide any evidence as to the amount of the bills, but noted in its brief to the Court of Appeals that as of the writing of the brief, only $5, remained outstanding. HOLDING: The Court of Appeals noted that the SIF did not provide any evidence at the hearing supporting the contention that only $5, was still outstanding. Therefore, the Commission s decision was supported by competent and substantial evidence. Note: In cases where the claimant is asking for unpaid medical bills, we need to determine the total medical bills, as well as what has been paid by the claimant or insurance, before the hearing so that we can submit those amounts into evidence. Michael Skinner v. Donnie Morgan, d/b/a D & M Development, L.L.C., and Treasurer of Missouri, as Custodian of Second Injury Fund, Case No. SD30019 (Mo. App. S.D. 2010). FACTS: The claimant was injured while working for an uninsured employer. At a hearing, the claimant provided evidence of outstanding medical bills in the amount of $254, and testified that the bills had not been paid. The Second Injury Fund did not object to the evidence, crossexamine the claimant, or provide any evidence that the amount of outstanding bills was lower. The Commission awarded the claimant $254, for the medical bills. The SIF appealed, arguing that the money for the medical bills should be paid directly to the medical providers to ensure that the claimant did not settle with the providers and keep the excess money. HOLDING: The Court of Appeals noted that the issue had been decided against the SIF by Wilmeth v. TMI, Inc. In addition, the statute is now strictly construed and there was no requirement in the statute that medical bills be paid directly to medical providers. The decision was affirmed. Affirmative Defense - Exclusivity of Workers Compensation Orlando Fortenberry v. Fredrick A. Buck, D.O., Case No. WD70490 (Mo. App. W.D. 2010). FACTS: In this civil case alleging medical malpractice, the claimant worked as a utility body man for Ford Motor Company when he sustained a laceration to his right forearm on February 24, The claimant reported the injury to the onsite medical clinic and was treated by Dr. Fredrick Buck, who was also an employee of Ford Motor Companies. The claimant filed a workers compensation 2

3 claim where he received an Award for 90% PPD at the 220-week level, 10% PPD of the body as a whole, and seven weeks of disfigurement, plus open medical benefits. The claimant then filed a third party lawsuit against Dr. Buck alleging that he had committed medical malpractice while treating the injury. Buck filed an Answer and pled as an affirmative defense that the claimant s lawsuit was barred because of the exclusivity of workers compensation. Buck eventually moved to dismiss the claimant s medical malpractice claim for lack of subject matter jurisdiction and the trial Judge agreed. H O L D I N G : The Court of Appeals cited McCracken v. Wal-Mart Stores East, LP, which held that the exclusivity of workers compensation must be filed as an affirmative defense and requires the Court to use the standard for summary judgement which, is higher than the standard for a motion to dismiss for lack of subject matter jurisdiction. The Court of Appeals indicated that the defendant must show that there was no genuine dispute as to the existence of each of the facts necessary to support the defendant s affirmative defense. The case was remanded. Statute of Limitations - Tinnitus case Sharon Lawrence v. Anheuser Busch Companies, Inc., Case No. ED93731 (Mo. App. E.D. 2010). FACTS: In this old law case, the claimant worked in a noisy environment in the late 1970's and early 1980's. She last worked in the noisy environment in A formal Claim for Compensation was filed on August 24, 2005 alleging that the claimant suffered hearing loss and tinnitus as a result of exposure to occupational noise while working for the employer from 1979 until November The Commission found that the claimant had first experienced a change of hearing in the early 1980's at which time she read articles about tinnitus. The claimant retired in February 2004 and then filed a Claim for Compensation alleging hearing loss and tinnitus on August 24, The claimant was diagnosed with hearing loss and tinnitus resulting from occupational noise exposure by Dr. Sheldon Davis on April 25, The Commission found that the claimant s hearing loss and tinnitus claims were barred by the statute of limitations based on Section because the claimant was last exposed to significant noise exposure in late 1984 and was then separated from the type of noisy work sufficient to trigger a six month separation period and start the statute of limitations time period. HOLDING: On appeal, the claimant dropped her hearing loss claim and proceeded with a tinnitus claim. The Court of Appeals held that tinnitus is an occupational disease that is separate and distinct from loss of hearing, so Section did not apply. Instead, Section applied which said that the statute of limitations for occupational disease claims did not begin to run until the disease was reasonably discoverable and connected to employment. When the tinnitus was reasonably discoverable was a question of fact that the Commission did not answer, so the case was remanded. ALJ Powers - Order IME examination State of Missouri ex rel. et al., Ray Taylor, v. Lisa Meiners, Case No. WD71129 (Mo. App. 3

4 W.D. 2010). FACTS: The claimant filed a claim for compensation on June 6, 2007 alleging injury to the Left eye and seventy-five percent (75%) permanent partial disability to the left eye. The employer filed an untimely answer on July 20, 2007 denying the claim. Subsequently the employer requested that the claimant submit to an IME, but the claimant refused because he said that the amount of PPD had been admitted because the answer was not timely filed. The employer filed a motion to compel and ALJ Lisa Meiners ordered the claimant to submit to the IME. The claimant then asked the Circuit Court and Court of Appeals to quash the motion because the ALJ had abused her discretion. HOLDING: The Court of Appeals did not address how the untimely answer affected the alleged facts, but held that the statute allows ALJ s to order claimants to appear for IME s and does not limit when the claimant may be ordered to appear. The ALJ did not abuse her discretion. Maximum Rates - Occupational Disease Claim David G. McGhee v. W. R. Grace & Co., Case No. SD30060 (Mo. App. S.D. 2010). FACTS: In this old law case, the claimant worked for the employer from 1964 to 1977 bagging vermiculite, which contained asbestos. The claimant said that for the first six or seven years, he was not provided with any safety equipment and was then given only throw away masks. The employer later started giving the claimant more adequate masks. The parties stipulated that the claimant had sustained an occupational disease and held a hearing to determine what compensation rate should be used; the date of last exposure (1977) or the date of diagnosis of the condition (2001). The ALJ held that the date of injury was the date of last exposure, or in 1977, at which time the PPD rate was capped at $95.00 per week. The ALJ also awarded the claimant a 15% penalty on all benefits, including medical benefits, because the employer failed to provide safety equipment. The claimant appealed arguing that the date of injury was the date of diagnosis and the employer appealed arguing there was insufficient evidence for the penalty. HOLDING: The Court of Appeals held that there was sufficient evidence in the record for the ALJ to assess the penalty against the employer. The Court also held that the date of injury for determining the compensation rate cap in occupational disease cases is the date the injury becomes compensable, which is the date the claimant became disabled. Therefore, the maximum rates used would be those from However, the Court still used the claimant s actual wages from 1977 to determine his rates. Jurisdiction - Enforcing Settlements Jerry Jackson v. Stahl Specialty Co., Case No. WD70909 (Mo. App. W.D. 2010). 4

5 FACTS: In this old law case, the claimant suffered an injury while working for the employer and was receiving TTD benefits. The claimant alleged that the employer had agreed to a settlement and then backed out. The claimant filed a motion with the Division asking an ALJ to approve the alleged settlement. The ALJ refused to do so because he did not have jurisdiction to enforce the settlement because the statute says that the settlement is only a settlement after being approved by an ALJ. This agreement had not been approved, and therefore, was not a settlement. The ALJ also assessed attorney s fees against the claimant and his attorney for a frivolous motion. The claimant appealed to the Commission who dismissed the appeal for lack of jurisdiction because there was no award issued by the Judge. HOLDING: The Court of Appeals also held that it did not have jurisdiction to review the ALJ s refusal to approve the alleged settlement. The Court noted it only had jurisdiction to hear appeals on final awards. There was no award from the Commission, and hence, no jurisdiction. Commission Trends Old Law Over the last three months, the Commission has ruled on 24 old law cases and reversed or modified 5 of those cases. One of those cases did not affect the amount of compensation awarded. The Commission affirmed the decision in Marcia Rouse v. Trans World Airlines, Injury No Joye Hudson argued successfully on appeal that while the claimant had suffered a compensable injury, she was not permanently and totally disabled as she had claimed. In Steve Biondo v. Dial Corporation, Injury No , the claimant suffered an injury that he alleged caused him to go blind in his left eye. An ALJ determined the injury was compensable because he suffered a hemorrhage in the eye while straining to lift. The Commission disagreed with the ALJ and found Dr. Korn and Dr. Krummenacher s opinion that the claimant s eye problems were from non-work related diabetes and diabetic retinopathy more credible than Dr. Pernoud s opinion that the condition was caused by a hemorrhage in the eye while lifting. The Commission denied the claim. In Herbert Houston v. Finninger s Catering Service, Injury No , the Commission had previously allowed the claimant to submit new evidence and remanded the case for a supplemental hearing. The new evidence was the testimony of the claimant s physician, Dr. Hanaway, that he had been unaware of a subsequent accident and his opinion had changed based on the new information. Dr. Hanaway had originally testified that the claimant s symptoms were traceable to a 2002 injury that occurred before the work injury. Dr. Hanaway now testified that subsequent reports indicated that the symptoms were traceable to the 2004 work injury. However, the Commission agreed with the ALJ that the new evidence was not persuasive because Dr. Hanaway had consistently pointed to the 2002 injury as the cause of the symptoms and had changed his opinion. The employer s doctor was more credible. In Jack Sanderson v. Sachs Electric, Injury No , the Commission modified the ALJ s award by allowing additional TTD benefits and reimbursement for medical expenses. The claimant was released by the employer s doctor at MMI. However, at that time, the employer s doctor also 5

6 said the claimant needed more physical therapy and could not return to work. He then treated on his own and subsequently underwent surgery. The Commission agreed with the claimant s doctors and vocational expert that the claimant should not have been released from care by the employer s doctor and awarded TTD and medical benefits. In Jantzer Washington v. Meridian Medical Tech, the claimant alleged a low back injury that he said occurred when the adjustable seat he was in fell to its lowest level. The claimant presented the report and deposition of Dr. Poetz. However, the Commission determined that Dr. Poetz did not have even a basic understanding of the claimant s job duties and therefore his opinion did not constitute substantial evidence. New Law The Commission heard appeals on 23 new law cases. Of those cases, the Commission reversed, modified, or provided supplemental opinions in 4 cases. Pertinent cases are summarized below. In Lewis Daniels v. R & S Electric, Injury Nos & , the Commission adopted the ALJ s findings that the claimant s work duties were the prevailing factor in causing an injury to the claimant s neck and body as a whole. The claimant was a journeyman lineman who pulled wire and ran pipe above his head. However, the job duties did not cause the degenerative condition in the thoracic and lumbar spine. The claimant was awarded 10% of the Body as a whole. In Gary Gervich (deceased) and Deborah Gervich (widow) v. Condaire, Inc., Injury No , the Commission determined that the claimant s dependant was not entitled to continuing permanent total disability benefits after her husband s death as had been previously allowed under Schoemehl. The Commission decided that the claimant s widow s rights under Schoemehl were not vested at the time of the amendments to the statute. Therefore, the Commission determined that the statutory amendment applied to the claimant s widow and her claim was denied. In Rachel Hannon v. David L. Kaelin, D.M.D., P.C. d/ba/ Kaelin Dental Group, Injury No , the claimant fell when her Crocs shoes snagged on the carpet while walking down the stairs to her locker. The claimant had not yet clocked in, but was going to put her purse in her locker because of the employer s policy that no personal belongings could be upstairs in the work area. The Commission determined that the claimant s accident arose out of her employment because she started work related activities when she first unlocked the door and turned off the alarm. She continued her work related duties by going to the basement to put away her purse as required. The Commission also determined that the claimant only wore Crocs at work and Crocs were known to snag on the carpet as other employees had stubbed their toes because of the Crocs. Therefore, the accident did not come from a hazard or risk unrelated to her employment. The claimant s job duties were the prevailing factor in causing the claimant s injury. In Danielle Johnson v. Nike IHM Manufacturer, Injury No , the Commission determined that the claimant had not met her burden in proving that her job duties were the prevailing factor in causing her carpal tunnel syndrome. The claimant would produce shoe soles by placing rubber molds into a machine and placing her fingers on buttons. The buttons had heat sensors so the claimant did not need to push them. The claimant would then remove the molds from the machine 6

7 and place them on another machine that would place air into the shoe soles. Finally, the claimant would inspect the soles to ensure there were no defects. The Commission determined that the claimant s job duties were repetitive, but not intensive, frequent or awkward. The Commission also determined that the employer and claimant s experts opinions on causation essentially equaled out. Because the evidence was equal, and the claimant had the burden of proof, the claim was denied. In Peggy King v. Dierberg s Markets, Inc, Injury No , the Commission determined that the claimant s 10 year history of working at the courtesy counter and as a checker were the prevailing factor in causing the claimant s carpal tunnel syndrome and DeQuervain s d isease. When working as a checker, the claimant would scan groceries which required constant grabbing, flexing and twisting of her hands. When she worked the courtesy counter, the claimant filled the checkers tills and counted coupons which required constant gripping. In addition, she would sell lottery tickets and process utility bills and returned milk bottles. In James Kuhnlein v. City of Kansas City and Treasurer or Missouri as Custodian of Second Injury Fund, Injury No , the Commission determined that the claimant was not permanently and totally disabled as a result of a combination of pre-existing conditions and a slip and fall on the employer s property. The claimant settled with the employer for 7.5% of the body as a whole and proceeded to trial against the SIF. The claimant did not admit any medical records and the Commission determined that the testimony of the claimant s doctor and vocational experts were not credible because the doctor did not have an understanding of the claimant s past medical conditions and because the vocational expert s determination that the claimant could not work was based on the same restrictions the claimant had and medication he was taking while he was still working. In Karen Larson v. Missouri Chamber of Commerce and Industry, Injury No , the Commission held that the claimant s arthritis in her big toe was not caused by her employment. The claimant alleged that she was required to walk in heels while at the capitol building and that this caused arthritis in her big toe. The claimant s doctor admitted that the claimant s arthritis would have taken a long time to develop, but said that walking in heels would aggravate the condition and cause additional symptoms. The Commission determined that the employer s doctor was more credible and that the arthritis in the big toe was a pre-existing condition that was not caused by the employment. In James Merkerson v. TAP Enterprises, Inc, Injury No , the Commission determined that the claimant s injuries arose in the course and scope of his employment. The claimant was hired in Missouri but was involved in a motor vehicle accident while working for the employer in Pennsylvania. The Commission determined that the claimant had been asked to accompany his supervisor to Wal-mart to pick up supplies for the next day. While on the errand, the claimant and his supervisor stopped at a fast food restaurant for dinner. The Commission did not discuss whether they stopped for dinner before or after they had picked up the supplies but determined that they were performing job duties in a reasonable place and time and were in the course and scope of their employment. The Commission determined that there was no evidence suggesting the claimant was on a frolic rather than a business errand. The claimant admitted that he had drank alcohol provided by his supervisor that evening, but denied being drunk. The Commission did not discuss when the claimant drank the alcohol. Both the claimant and his supervisor testified they were unaware of the employer s policy prohibiting alcohol 7

8 use. The supervisor said he had examined the employer s policy manual and found no mention of alcohol. The employer provided a handbook that prohibited the use of alcohol on company time. The Commission did not allow for a penalty against the claimant for alcohol and safety violations because it determined that the employer had not adopted the policies because it had made no effort to put them into effect. In fact, the claimant s supervisor had provided the alcohol and was unaware of the policy. In Mary E. Miller v. Argosy Casino Riverside, Injury No , the Commission determined that injuries the claimant sustained while walking in a hallway to the break room were compensable. The Commission determined that the claimant s testimony that she tripped when her foot stuck to something on the floor was credible. Surveillance footage of the accident did not clearly show if there was anything on the floor. The case was distinguished from Bivins v. St. John s Regional Health Center and Miller v. Missouri Highway and Transportation Commission because the claimants in those cases had been injured without explanation while walking. Here the Commission believed that the claimant s foot had stuck to a substance on the floor. In Mary Perdue v. PeopLease Corp., Injury No , the Commission determined that the claimant suffered a disc herniation while cutting through shrink wrap. The employer argued that this accident did not arise out of the claimant s employment because she was no more exposed to risk than she would be in other daily activities. However, the Commission determined that the accident occurred while the claimant was doing an integral part of her job, thus creating a nexus connecting the work activity and the accident. The Commission said that whether the claimant was equally exposed to the risk outside of employment only matters if there is not a nexus connecting the employment and the accident. In Billie Salzman v. Tiffany Care Centers, Inc., Injury No , the claimant suffered an injury to her back while helping a patient who had fallen. The claimant treated conservatively and was released back to work where she re-injured her back. The claimant was obese, diabetic and had degenerative disc disease. However, the claimant s physician said that the work injury caused a synovial cyst which was the prevailing factor in the claimant s need for back surgery. The Commission noted that the claimant did not have left lower extremity complaints until after the work injury despite her other risk factors. The employer s doctor testified that the new symptoms could be caused by the pre-existing conditions, but the opinion of the claimant s doctor that there was a new synovial cyst caused by the work injury was more consistent with the clinical symptoms and objective testing. The Commission found the claimant s doctor to be more credible and issued a temporary award ordering further treatment. In John Shelton v. Delmar Gardens, Injury Nos and , the claimant suffered an injury while lifting a patient. He treated on his own at the VA hospital and was re-injured when he returned to work a few days later. The claimant was sent to Concentra Medical Center at which time he refused to take a post injury alcohol test as required by the employer s policy. The employer provided a document acknowledging the post accident testing policy that was signed by the claimant when he was hired. Because he refused the alcohol test, the Commission determined that the claimant had forfeited his benefits. In Cindy Splitter v. Coin Acceptors, Inc, Injury No , the Commission determined that the claimant s plantar fasciitis was caused by her job duties which primarily included restoring soda 8

9 machines. The Commission noted that the claimant worked 10 hours per day on concrete floors with no padding and often worked overtime. In addition, she had to push 600 pound soda machines and climb up and down ladders throughout the day. She worked with this employer for ten years and had no prior feet complaints, but developed foot problems after she began working on the soda machines. The Commission found the opinions of the claimant s doctors to be more credible and found the claim compensable. In Michael Todd v. Alstom, Power, Inc., Injury No , the Commission provided a temporary award in favor of the claimant. The claimant had suffered a partial amputation to his thumb when another employee struck a pin that flew up and hit the claimant, who was standing several feet away. The claimant then waited with his supervisor for a medical response team that never came. While waiting, the claimant was losing blood and also had to urinate. The claimant then urinated a second time a short time later. The employer then asked the claimant to provide a urine sample and take a breath test. The claimant passed the breath test but testified he could not provide a urine sample because he was in shock and dehydrated. He drank a glass of water but still could not provide a sample. After a couple of hours of waiting, the claimant was taken to a clinic where he again drank water and was able to provide a urine sample. However, the sample was rejected because it had taken to long to collect the sample. The employer denied compensation because it argued the claimant had refused to take a drug test in violation of a post accident policy and that he had told his supervisor he had smoked marijuana a few days before. However, the Commission determined that the claimant had attempted to provide a urine sample and there was no medical evidence that he could have provided a sample given his medical condition after the injury. In Deborah Vitale v. St. Louis Envelope Company/Fowler Envelope, Missouri Envelope, LLC, Injury No , the Commission denied the claim because the claimant s ongoing symptoms and need for treatment were the result of a pre-existing degenerative back condition. The claimant alleged she had suffered discogenic disease as a result of a work injury. However, the Commission found the employer s doctor to be more credible and determined that the claimant had suffered two transient strains that had resolved with no permanency. The claimant s remaining symptoms were the result of a pre-existing back condition and were not work related. 9