Workers' Compensation

Editor:
Chris T. Archer, Esquire

A surveillance video tape taken of a claimant is discoverable by use of a subpoena duces tecum, even though it is otherwise not a statement as defined in Section 287.215, RSMo 2005. State ex rel., et al. v. Bob Sight Ford, Inc., No. 72969 (Mo. App. W.D., May 31, 2011), Hardwick, C.J.

Claimant sought the discovery by deposition of a video surveillance tape taken of a claimant seeking worker’s compensation benefits.  The claimant filed for permanent writ of mandamus forcing the appearance of the adjuster and any videotaped surveillance relying on the provisions of
Section 287.560, RSMo, that provides: “Any party shall be entitled to process to compel the attendance of witnesses and the production of books, and papers, and at his own cost to take and use the depositions in like manner in civil cases in the circuit court,…”
The court found that Rule 56.01(b)(3) of the rules of civil procedure defines the scope of discovery and includes video as a statement that need be produced. 

A claimant can be entitled to permanent total disability despite working in a sporadic part time capacity.  Molder v. Missouri State Treasurer, et al., No. 72977 (Mo. App. W.D., June 14, 2011), Ahuja, J.

In October 2006 and November 2007 claimant underwent right and left carpal tunnel syndrome. Claimant settled her claim for 12.5% PPD to BAW and pursued the SIF for permanent total disability for a variety of prior disabilities, having been laid off in 2007.  The ALJ denied the claim for permanent total disability based upon the fact the claimant started to work in a part time capacity working zero to 20 hours a week on a sporadic basis with accommodations for her symptoms.  The commission reversed and awarded permanent total disability. 

The court affirmed the award based upon the deference to the commission and the fact more than substantial evidence supported the conclusion that the claimant was totally disabled from a combination of the claimant’s primary claim and disability for the claimant’s bilateral carpal tunnel syndrome, and extensive prior disability, and restriction on the claimant’s ability to function.

Medical treatment for an otherwise compensable accident and injury is to be provided if the treatment is “reasonably required” to cure and relieve the effects of the injury, consistent with Section 287.140.1, RSMo. Tillotson v. St. Joseph’s Medical Center, No. 72948 (Mo. App. W.D., June 14, 2011), Martin, J.

Claimant sustained a medial meniscus tear in his knee in a compensable work related accident.   The uncontested expert medical evidence was that the claimant required a total knee replacement to cure and relieve the effect of the injury.  The claimant had no prior history of  knee complaints or treatment.

The court stated: “The case highlights the material distinction between determining whether a compensable injury has occurred and determining the medical treatment required to be provided to treat a compensable injury.”

The imposition of a safety penalty consistent with Section 287.120.5,  RSMo 2005, against an employee’s right to compensation is constitutional. “Compensation” for the purposes of the penalty includes the value of medical expenses paid by an employer. Thompson v. ICI  American Holding, et al., No.72374 (Mo. App. W.D., August 9, 2011), Ahuja, J.

Claimant sustained serious injuries in an accident that occurred when he failed to follow a lock-out, tag-out safety rule and policy when repairing a piece of machinery at his place of employment.   The ALJ found that accident occurred as a result of claimant’s failure to follow the safety policy, and assessed a 37.5% penalty against the value of TTD, PPD and medical expenses in total that were provide or ordered in the case.  The commission affirmed the award of the ALJ.

The court found the changes made to Section 287.120.5, RSMo in 2005 were constitutional and did not violate the equal protection clause of the Missouri Constitution.  On the argument made that the Employer did not “enforce” the lock-out tag-out policy, the court stated that the statute only requires: “the employer to have made a reasonable effort to cause [its] employees … to obey and rule[s].” Section 287.120.5, RSMo 2005.