Missouri Workers' Compensation Update
Recent workers' compensation cases in Missouri

MISSOURI WORKERS’ COMPENSATION LAW UPDATE

Q:  Can an employee sustain his burden of proving evidence of disability without having a medical doctor certify the percentage of disability, despite the requirements of § 287.190.6(2)?

A: Probably. In Resinger v. Mississippi Lime, 2015 WL 9460185 (Mo. Lab. Ind. Rel. Com.), the claimant sought PPD benefits from the employer based on the claim that a noisy work environment cause his tinnitus. To provide evidence of his disability the claimant introduced testimony from a PhD audiologist. The employer argued that the claimant could not prove medical causation through the audiologist’s testimony because he was not a physician. Both parties agreed that there was no objective measure of tinnitus. Ultimately, the ALJ awarded benefits finding that the audiologist’s testimony was more persuasive that the employer’s physician’s testimony.

On appeal, the Commission affirmed the ALJ’s award and held that the claimant had no statutory obligation to prove disability by use of a physician when the basis to support an award of disability is based solely on subjective reporting. In so holding, the Commission cited to Landers v. Chrysler, 963 S.W.3d 275 (Mo. App. 1997), in which an “expert” psychologist was permitted to testify regarding the cause and extent of a brain injury despite the fact he was not a medical doctor. The Commission explained that because the 2005 amendments did not expressly abrogate Landers, §287.190.6(2)’s physician requirement allowed proof of causation and disability through an expert that was not a physician. The Commission noted that the Landers decision stands for the proposition that, where an expert witness possesses scientific, technical, or other specialized knowledge that will assist the trier of fact in resolving an issue of medical causation, the fact the witness does not possess a license to practice medicine is not particularly relevant. The Commission concluded that where the uncontested evidence reveals that there is not objective measure for quantifying the degree of an employee's disability referable to a work injury the language of § 287.190.6(2) is simply not applicable.

 

Q: Is §287.190.6(2) a basis for costs and fees if a party fails to provide a physician’s demonstration or certification of permanent disability?

 

A: Probably Not. In Resinger v. Mississippi Lime, 2015 WL 9460185 (Mo. Lab. Ind. Rel. Com.), the Commission held that 287.190.6(2) does not prescribe any penalty or sanctions for a party's failure to provide a physician's demonstration and/or certification of permanent disability. Although a party may argue that the opposing party is required to obtain a rating under the statute, the fact that no penalty is prescribed in §287.190.6(2) demonstrates the provision is directory, rather than mandatory. Thus, the failure of a party to obtain a rating should not be a basis for assessment of costs and fees.

 

Q: If an employee’s condition fails to improve after surgery, can he successfully argue he was at MMI prior to getting any treatment?

 

A: Probably. In Guzman v. George’s Processing, Inc., 2015 WL 9460182 (Mo. Lab. Ind. Rel. Com.), the claimant initially complained of problems with her bilateral wrists and fingers on December 31, 2009, but was not provided treatment by the employer for almost a year. After an EMG revealed right carpal tunnel syndrome, the claimant underwent a right carpal tunnel release and right trigger finger release on June 20, 2011. Following surgery, the claimant’s trigger finger complaints resolved but her right wrist failed to improve. The claimant was released by the treating doctor on December 9, 2011 and found to be at MMI. However, to obtain benefits from the SIF, the claimant argued that her right wrist, left wrist and right long finger were at MMI on November 1, 2010, the date of the primary injury. Nonetheless, the ALJ denied the argument and did not award PPD from the SIF.

 

On appeal, the Commission reversed, holding that although the claimant underwent surgery in June 2011, her right wrist complaints failed to improve and therefore the claimant was at MMI as of December 31, 2009, prior to getting any treatment at all. The Commission determined the claimant had a preexisting disability of 10% PPD of the left wrist and 20% PPD of the right wrist, as well as a 15% load factor.

 

Q: If an employee and employer/the SIF stipulate that the only issue is accident, can the employer successfully argue that the employee failed to meet their burden of proof on “injury” or “medical causation?”

 

A: Probably Not. In Johnston v. City of Kansas City, 2015 WL 9460184 (Mo. Lab. Ind. Rel. Com.), the claimant alleged that while getting off of a bulldozer his right heel landed on a hose causing him to develop plantar fasciitis. He also alleged he developed an occupational disease involving degenerative arthritis in the CMC joints of his bilateral thumbs due to his work with the employer. Prior to hearing, the claimant settled with the employer. At hearing, the claimant and the SIF stipulated that the only issue was accident and neither party alleged a dispute involving “injury arising out of and in the course of employment.” The ALJ found that claimant failed to prove medical causation. 

 

On appeal, the claimant argued that the ALJ exceeded his authority because the SIF stipulated that accident was the only issue. The Commission agreed and held that since the SIF did not expressly dispute the issue of medical causation or “injury arising out of and in the course of employment” then the SIF could not argue either point. The Commission noted that, under § 287.020.2(3), an employee cannot be said to have sustained an "injury by accident arising out of and in the course of employment" without satisfying the requirement that the accident be shown to be the prevailing factor in causing both the resulting medical condition and disability.  A finding for the employee with respect to medical causation is a necessary (albeit not always a sufficient) element of a conclusion that the employee's injury arose out of and in the course of the employment.

 

Q: In an occupational disease case, does the employee have to prove the §287.020.3 requirement that his injury does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed to outside of an unrelated to the employment in normal nonemployment life?

 

A: Apparently Not. In Lankford v. Newton County, 2015 WL 8614956 (Mo. Lab. Ind. Rel. Com.), the employer appealed an award of PTD benefits to the deceased claimant's widow arguing that the claimant failed to show he was exposed to the pathogens that caused his occupational disease to a greater extent or degree than workers in normal, nonemployment life. The Commission affirmed the PTD award and held that because occupational disease requirements of §287.067, do not have an “equal exposure” requirement, it is not appropriate to rely on the criteria for a compensable injury by accident under §§287.020 and 287.020.3. The Commission noted that Johme and Miller, both of which deal with acute accidents and equal exposure, were not applicable to occupational disease claims. Rather than proving equal exposure, in occupational disease cases the claimant must simply demonstrate that the disease he suffered is not an “ordinary disease of life to which the general public is exposed outside of employment.”

 

Q: If an employee is on an uncompensated lunch break on the employer’s premises and sustains an injury, does the personal comfort doctrine allow the claimant to recover compensation?

A: Probably. The personal comfort doctrine provides an exception to the “arising out of and in the course of” requirement by allowing for employer liability in situations where an employee is injured doing activities that the employer might reasonably anticipate based on time and space because those activities benefit the employer by allowing its workers to eat or to go to the bathroom.

 

In Wright v. Treasurer, 2015 WL 6986992 (Mo. Ct. App. E.D. 2015), the claimant was sitting on a chair in the employer’s lunchroom, eating his lunch on an unpaid break, when the chair collapsed underneath him. The claimant fell and hit the ground and subsequently developed intensive pain in his low back and down his right leg. The Commission identified the risk source that caused the claimant's injury as the collapse of the particular chair belonging to the employer, not chairs in general.  The Commission also concluded that the claimant did not have to prove he was working at the time of the accident based on the legislature's preservation of a limited extension of premises doctrine.  The Commission reasoned that, to allow recovery where an employee is injured on the employer's property while going to and from lunch, but to disallow it when the employee is injured on the employer's property during lunch would be to "carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographical and temporal boundaries."

 

On Appeal, the SIF argued that at the time of the accident, the claimant was engaged in a personal comfort (eating lunch) and that the 2005 amendments abolished the personal comfort doctrine based on §287.020.1’s abrogation of Drewes v. TWA, 984 S.W.2d 512 (Mo. banc 1999). The Eastern District Court of Appeals concluded that, strictly construing §287.020.1, the legislature did not expressly abolish the personal comfort doctrine. Rather, the Court found that §287.020.1 barred recovery under the personal comfort doctrine when an accident occurred off of the employer’s premises but was not a per se bar to injuries that occur on an employer’s premises when an employee is on an unpaid break.

 

The Court noted that the focus of the inquiry is the particular RISK of the injury, not what activity the employee is engaged in at the time of the injury. Whether the action the employee is engaging in is something he or she does outside of work is of less concern that whether the risk of injury from that action is equally present outside of work, or instead has some causal connection to the employee’s work. Thus, in this case the Court explained that, while sitting in a chair is a generalized risk, whether the chair will collapse is dependent on the particular chair. They concluded that the claimant was not exposed to the particular chair in his nonemployment life and it was this particular chair that carried the risk of collapse.

 

Q: If an employee is morbidly obese prior to a work-related accident, can the Commission find the SIF liable for PTD benefits based on the combination of the disability associated with the employee’s primary injury and the preexisting morbid obesity?

A: Probably. In Hahs v. Mo. Highway and Transport, 2015 WL 7961387 (Mo. Lab. Ind. Rel. Com.), the claimant, who was 48 years old and 400lbs, was driving a tractor that flipped over. Following the accident, the claimant treated for increased neck and back pain and underwent shoulder surgery. His treating doctor opined that the claimant’s recurrent back pain arose, at least in part, from his morbid obesity. The claimant argued he was unemployable in the open labor market due to his pre-existing morbid obesity and the accident. The ALJ found the work restrictions from the claimant’s treating physicians more persuasive than the opinions of the claimant’s hired experts and awarded more than 50% BAW.  While the case was on appeal, the claimant and the employer settled.

On appeal, the Commission awarded PTD benefits against the SIF in a reversal of the ALJ’s opinion. The Commission concluded that the claimant did not have to prove his prior disability, obesity, was “actual and measurable” because that standard only applied to permanent partial disability claims. The Commission explained that due to the claimant’s morbid obesity “prospective employers [would] hold employee’s weight against him, even if he possesses the relevant skills and physical abilities to perform a job.” The Commission concluded that since potential future employers would regard the claimant as disabled due to his appearance, there was a prior disability.

 

Q: If an employee slips and falls in a parking lot leased by the employer, while the employee is walking to her car to run a personal errand on an unpaid break, are the injuries compensable?

A: Probably. In Mo. Dept. of Social Services v. Beem, 2015 WL 5934143 (Mo. Ct. App. W.D. 2015), the claimant was leaving work to go home and let her dog out during a unpaid 15 minute break. She exited the building and walked toward her car. The parking lot she walked through was plowed and the snow was piled on the sidewalks. However, some of the snow had fallen from the sidewalk and re-frozen on the parking lot. The claimant slipped and fell on this ice on her way to the car.

The Commission, affirmed by the Court of Appeals, found that based on the extension of premises doctrine, the claimant’s injury was compensable. The Court noted that the 2005 amendments to the Workers' Compensation Act did not result in a total elimination of the extension of premises doctrine, but merely limited the doctrine to situations where the employer own or controls the area where the accident occurs.  The Court determined that the lease, which gave the employer the option to transfer interest, use the 23 spaces, and failed to give the landlord the power to make rules governing the lot, demonstrated the employer’s control.

Interestingly, the Court relied on an incident in which the claimant herself was told to contact the landlord in order to have snow removed as an example of the employer’s control over the lot. The employer also argued that the claimant was equally exposed to icy parking lots in everyday life. However, the Court and Commission disagreed. The Court held that the claimant’s employment at employer exposed her to that “particular hazard,” i.e., that specific lot.

Q: Can an employee continue to receive TTD benefits after reaching maximum medical improvement?

A:  Yes.  In Greer v. Sysco Food Services, 2015 WL 8242710 (Mo. 2015), the claimant suffered an injury to his left ankle, underwent a lengthy course of treatment, and was ultimately placed at MMI on 04/23/07.  The claimant continued to undergo various forms of unauthorized conservative treatment until 06/22/10, when he underwent surgery on his left ankle.  He was eventually released on 02/04/11.

The employer argued the claimant could not be entitled to TTD benefits from 06/22/10 to 02/04/11 because it had been determined that he reached MMI on 04/23/07.  The Supreme Court held that, while the determination of MMI is helpful in determining whether a claimant is entitled to TTD benefits,  the true question is whether the claimant is engaged in the rehabilitative process.  Because the claimant in Greer  was continuing to engage in the rehabilitative process after 04/23/07, he could receive TTD benefits from 06/22/10 to 02/04/11, the period of time during which he would have been unable to compete for employment in the open labor market after surgery.

Q: If an employee is diagnosed with PTSD before suffering a work-related injury, and the work injury results in an aggravation of the PTSD, can he establish a compensable injury in the form of the aggravation of the preexisting PTSD?

A:  Yes.  In Bowman v. Central Missouri Aviation, Inc., 2015 WL 7681300 (Mo. Lab.  Ind. Rel. Com.), the ALJ denied the claimant's allegation of psychiatric injury related to the worsening of his preexisting post-traumatic stress disorder.  Although the Commission affirmed the denial, they differentiated between a "medical condition" and a "medical diagnosis," noting the two terms are not necessarily synonymous.

The Commission pointed out that, once an employee has met his burden of proving an accident was the prevailing factor causing a resulting medical condition and disability, evidence of a preexisting condition of ill-being and/or disability may be relevant to the issue of SIF liability, and/or the nature and extent of compensable disability, but does not defeat the claim.  Therefore, the fact that the claimant was previously diagnosed with PTSD did not, alone, preclude recovery.

 

© 2016 McAnany, Van Cleave & Phillips, P.A.

Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances.  This is not inclusive of all exceptions and requirements which may apply to any individual claim.  It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.