Recently Asked Questions in Missouri Workers' Compensation
From Issues Addressed in Recent Missouri Cases

RECENTLY ASKED QUESTIONS IN MISSOURI

 

FROM ISSUES ADDRESSED IN RECENT MISSOURI CASES

 

Q:        Does the claimant need to provide a medical opinion to support her contention that she is incapable of working and, thus, entitled to TTD benefits?

 

A:        No.  In the Lydia Pace case, the ALJ denied TTD benefits from 11/07/05 through 08/24/11 because the ALJ believed some of the claimant's limitations were unrelated to the injury, and because surveillance video of the claimant was obtained showing her actively using her right arm.  The Commission reversed, noting it is well-settled in Missouri that "[a] claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability."  Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003).

 

Lydia Pace v. Jefferson City Country Club (Mo. Lab. Ind. Rel. Comm., January 7, 2016)

 

Q:        If the employer fails to provide medical treatment, will the employer automatically be deemed to have waived its right to direct care in the future?

 

A:        No.  In the Bobby Mock case, two employers were arguing about which should be responsible for providing benefits for the claimant's injury.  After making a determination about the responsible employer, the ALJ suggested that the claimant may direct his own medical treatment going forward, based on a finding that, because no treatment was ever authorized by either employer, those entities "waived" their statutory right to direct treatment.

 

The Commission reversed, noting that the courts have never recognized (and the plain language of the statute does not support) a theory that by once failing to provide care, an employer should be deemed as forever waiving the right to direct care in the future.

 

The Commission recognized that, in Balsamo v. Fisher Body Division-General Motors Corp., 481 S.W.2d 536 (Mo. Ct. App. 1972), the Court reasoned that, after previously acceding to and paying for treatment selected by the employee, the employer could not reassert its right to direct treatment.  However, the Commission did not believe Balsamo supports a theory that an employer's denial of treatment amounts to a de facto "waiver" of the right to direct it going forward.

 

Bobby Mock v. Superclean Services Co., LLC (Mo. Lab. Ind. Rel. Comm., January 14, 2016)

 

Q:        If the claimant demands medical treatment, and this demand is denied by the employer, must the claimant continue to make demands on the employer each time new treatment recommendations are made by the unauthorized treating physician in order to obtain an award for the value of the medical bills?

 

A:        No.  In the Robert Wright case, the employer argued they should not be liable for the claimant's medical bills because the treatment was not authorized.  In rejecting this argument, the Commission noted that the claimant made numerous demands upon the employer for additional medical treatment, and the employer rejected the claimant's requests. 

 

The employer also argued the claimant should have demanded additional treatment after getting the 05/31/12 MRI on his own. However, the Commission noted that the employer had already denied the demand for additional treatment on 04/17/12, citing the opinions of Dr. Chabot. 

 

The Commission ended up awarding $388,011.29 in past medical.

 

Robert Wright v. TG Missouri Corporation (Mo. Lab. Ind. Rel. Comm., January 22, 2016)

 

Q:        If the claimant's injury occurs while he is performing activities for which is not being paid, can he still establish a compensable injury?

 

A:        Yes.  In the Danny Sanders case, the claimant went to Mid America Rehab in Perryville, MO for a post-employment/fit-for-duty evaluation.  During the evaluation, he was lifting a box, and felt pain in his low back.  This was documented by the therapist at the time of the evaluation.  The employer argued that the claimant's injury did not arise out of and in the course of employment because he was participating in a program for which he was not being paid.  The employer further argued that completion of the fitness-for-work examination was a condition precedent to the claimant resuming work duties for the employer.

 

The Commission rejected this argument, noting that the employer's primary argument was that the claimant was not "on the clock" and thus did not receive any compensation for the work the employer required of him in completing the evaluation.  The Commission indicated that the courts have suggested that such an argument is unavailing.  See Henry v. Precision Apparatus, Inc., 309 S.W.3d 341 (Mo. Ct. App. 2010)

 

The Commission added that strictly construing § 287.020.3(2) reveals no requirement that an employee be "on the clock" or receiving remuneration at the time a work injury occurs.  Rather, an employee need only demonstrate that the accident was the prevailing factor causing the injury, and that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed in normal nonemployment life.

 

Danny Sanders v. Rollet Brothers Trucking Company (Mo. Lab. Ind. Rel. Comm., January 27, 2016)

 

Q:        If a corporate designee's deposition is taken, and the corporate designee denies the existence of surveillance video, and surveillance that was not in existence at the time of the deposition is subsequently obtained, must the corporate designee supplement the deposition testimony by providing the surveillance?

 

A:        Probably Yes.  At Hearing, the employer offered surveillance video of the claimant performing certain tasks.  The claimant objected to its admissibility.  The claimant had taken the deposition of the superintendent of the employer on two separate occasions.  The Notice of Deposition included a request for statements and any video taken of the claimant.  No video existed at the time of either deposition.  When the video was subsequently taken, it was not turned over to the claimant.  The employer argued it was not required to produce the video because no Subpoena Duces Tecum was presented to the superintendent at the time of the deposition.

 

The ALJ sustained the claimant's objection to the admissibility of the video.  The ALJ found that no Subpoena was necessary because the superintendent voluntarily appeared through the notice and thereby had a duty to supplement any deposition testimony and production of video or statements through the claimant's Request for Production of those materials pursuant to Missouri Supreme Court Rule 56.01(e), which sets forth a duty to seasonably amend a prior response to a Request for Production, in this case, for any video surveillance.

 

The Court of Appeals pointed out that the superintendent was produced for a deposition as the employer's designated representative.  In this context, he was a representative of a party.  Consequently, the employer had to inform the claimant of the surveillance videos when it discovered that the deposition testimony was no longer correct. 

 

Burlison v. Department of Public Safety, 2016 WL 364310 (Mo. Ct. App. S.D. - January 29, 2016)

 

Q:        Can the claimant be found permanently and totally disabled even if no doctor specifically opines that the claimant is permanently and totally disabled?

 

A:        Yes.  In the Daryl Majors case, the claimant underwent an IME with Dr. Stuckmeyer (his own IME doctor), who recommended the claimant proceed with a vocational assessment after recommending a number of permanent restrictions referable to his work-related right knee injury and preexisting left knee condition.  Terry Cordray (the claimant's vocational expert) opined that the claimant was permanently and totally disabled as a result of the work injury in combination with his preexisting disabilities.  Mr. Cordray relied on the restrictions of Dr. Stuckmeyer and Dr. Stechschulte (the authorized treating physician).

 

The Second Injury Fund argued the Commission was prevented, as a matter of law, from finding, as a factual matter, that the claimant is PTD because § 287.190.6(2) provides, in relevant part, that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician."

 

In rejecting this argument, the Commission noted that the definitions of "certify" and "demonstrate" do not imply or mandate any requirement that a medical expert in a workers' compensation case employ specific language in order to make a certification or demonstration of an employee's physical functioning.  Rather, it would appear that so long as the medical expert is able to "attest authoritatively," "confirm," "manifest clearly," or "make evidence or reveal" the extent of an employee's physical functioning by making findings on examination, rendering diagnoses as to the employee's medical conditions, and rendering restrictions on the employee's physical activities referable to those diagnoses, the medical expert may therefore "demonstrate" or "certify" an employee's permanent and totally disabled status, without using the exact phrase "permanent total disability."

 

The Commission also pointed out that a proper analysis of employability requires not only the expert medical identification or physical limitations, but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining.  In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment.

 

Finally, the Commission noted that, although § 287.190.6(2) uses the word "shall" in describing the requirement of physician certification/demonstration, the statute does not prescribe any penalty (such as denial of the claim for permanent disability benefits) where a litigant fails to provide such evidence.

 

Daryl Majors v. City of Marshall (Mo. Lab. Ind. Rel. Comm., February 17, 2016)

 

Q:        If the employer's doctor opines that the work accident is not the prevailing factor in causing the claimant's current medical condition, will that be sufficient to successfully dispute medical causation?

 

A:        Probably Not.   In the Martha Robertson case, Dr. DeGrange (the employer's IME doctor) agreed that the claimant suffered a lumbar strain, but did not feel the work accident was the prevailing factor in causing her current condition at the time of his evaluation.  Dr. Margolis (the claimant's IME doctor) opined that the 09/17/09 accident was the prevailing factor causing the claimant to suffer a lumbar strain/sprain with exacerbation of pain related to the claimant's prior lumbar fusion.

 

The Commission emphasized the fact that Dr. DeGrange did not consider whether the accident was the prevailing factor in causing any new, identifiable medical condition; instead, he analyzed whether the accident was the prevailing factor causing the claimant's "current condition." The Commission agreed that the claimant's low back disability was overall primarily related to conditions that predated the primary injury [emphasis in original].  However, they did not find Dr. DeGrange's otherwise credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability?  The Commission felt the causation opinion of Dr. Margolis was essentially unrebutted on the record, and they credited Dr. Margolis on that point.

 

Martha Robertson v. Southwestern Bell Telephone Co.  (Mo. Lab. Ind. Rel. Comm., March 15, 2016)

 

Q:        If the claimant suffers a traumatic psychiatric injury as a result of an isolated incident at work, must the claimant prove that the work-related stressors involved were "extraordinary and unusual" under § 287.120.8?

 

A:        No.  In the Stephen Marino case, the claimant alleged mental injury stemming from a specific traumatic event on 12/18/98 when he intervened while a group of assailants were brutally attacking a security guard on the employer's premises.  The ALJ denied the claim, in part, on a conclusion that the work-related stressors involved in that incident were not "extraordinary and unusual" for purposes of § 287.120.8 because performing property management work in bad neighborhoods was highly stressful in general.

 

The Commission concluded that, because the claimant was claiming a mental injury resulting from a specific traumatic event - as opposed to generalized workplace stress over a period of time - the "extraordinary and unusual" requirement under § 287.120.8 was not applicable.  The Commission indicated the appropriate question is whether the claimant proved that he suffered a compensable injury by accident for purposes of § 287.120.1.

 

Stephen Marino v. Greystone Partners, Inc. (Mo. Lab. Ind. Rel. Comm., March 18, 2016)

 

Q:        If the claimant steps off the edge of a sidewalk while leaving work, can the claimant establish a compensable injury?

 

A:        Yes.  In a recent case, the claimant, an administrative assistant with an office on the employer's campus, left work and started walking to her car in the parking lot.  The claimant walked down a ramp and turned right onto a sidewalk that led to the parking lot.  Bumpers from cars parked on the left side of the sidewalk made the sidewalk narrow.  When students began walking toward the claimant, she stepped to the right, causing her foot to land on a steep edge of the sidewalk.  As her right ankle turned, she overcompensated to her left, fell, and broke her left ankle.

 

The ALJ awarded benefits, and the Commission affirmed.  The employer appealed, arguing the Commission erred by determining that the "risk or hazard from which [the claimant's] injuries came was traversing the crowded campus sidewalk with its steep drop-off," when the risk source of her injury was simply walking.

 

The Court of Appeals noted that the Commission clearly identified the risk source of the claimant's injury by looking at the particular activity that caused the injury - walking along a sidewalk with its steep edge on the employer's campus - and comparing that particular activity to the claimant's normal nonemployment life in order to determine whether the claimant's injury arose out of and in the course of her employment.

 

Lincoln University v. Narens, 2016 WL 1436275 (Mo. Ct. App. W.D. - April 12, 2016)

 

 

 

 

 

 

 

 © 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.