Workers' Compensation

Chris T. Archer, Esquire

In a case involving a communicable disease, the statute “does not require a claimant to establish, by a medical certainty, that his or her injury was caused by an occupational disease in order to be eligible for compensation.” Smith v. Capital Region Medical Center, No. 75078 (Mo. App. W.D, March 26, 2013), Newton, P.J.

In a case involving a claimant who contracted Hepatitis C, there was conflicting expert testimony as to whether the claimant was likely to have contracted the disease from his long time work in a hospital or from a prior blood transfusion. The administrative law judge and commission found that the claimant failed in his burden of proving his Hepatitis C was contracted by exposure to the virus in his work at the hospital.

The court reversed and remanded the case. The court stated that “where a communicable disease is involved, a claimant is required to demonstrate that she was exposed to and contracted the disease arising out of and in the course of her employment” citing Vickers v Mo. Dept. of Pub. Safety, 167 S.W.3d 222 (Mo. App. 2005). The court remanded the case back to commission for reconsideration of the evidence and testimony.

The Veterans Administration has right to intervene in a workers' compensation case at the Division of Workers' Compensation to assert and protect its lien for the treatment it provided a claimant. US Department of Veterans Affairs v. Boresi, No. 92541 (Mo. banc. April 30, 2013), Teitelman, C.J.

The Veterans Administration (VA) sought to intervene in a worker’s compensation case to protect its asserted lien under 38 U.S.C. Section 1729. The chief administrative law judge denied the motion and the VA sought writ of mandamus in circuit court. The court denied the writ and after the court of appeals provided an opinion they transferred the case to the Missouri Supreme Court.

The Court permitted the intervention. “The lack of a provision in chapter 287 authorizing intervention cannot impede the VA from intervening under the applicable federal statutes.”

A hair stylist working as an independent contractor at a hair salon was not a statutory employee under Section 287.140.1, RSMo and therefore entitled to benefits when working at a salon that merely provided him “the facilities in which to engage in revenue generating activity.” Brito-Pacheco v. Tina’s Hair Salon, No. 75062 (Mo. App. W.D., April 30, 2013), Ahuja, P.J.

Claimant was murdered at a hair salon where he worked. He was working as an independent contractor sharing 50% of his revenue with the salon. The salon did not exert any control over the claimant’s hours or work performed. The owner of the salon was also a hair stylist with her own customers. Walk-in customers were shared on a rotating basis.

A claim was filed against the salon for death benefits. The commission denied the claim. The court affirmed the denial citing precedent that the furnishing of facilities for independent contractor to work was not the “usual course of the alleged statutory employer’s business.”

The children of a deceased claimant who were dependent upon the claimant at the time of his work related accident are entitled to “inherit” their deceased father’s permanent total disability benefits for their lifetimes, as his claim was not final when he died from a cause unrelated to his case. Spradling v. Treasurer of the State of Missouri, No. 31907 (Mo. App. S.D., April 24, 2013), Francis, Jr., J.

Claimant sustained a back injury from an accident that occurred in 1998. He died from unrelated causes in 2005 during the pendency of his claim. Before the hearing of his claim, dependents settled the primary claim against the employer/insurer but proceeded to a hearing against the Second Injury Fund for a claim of permanent total disability for a combination of disability from the primary low back claim with prior disabilities. The administrative law judge and commission found that the claimant sustained a compensable accident despite some varying histories and inconsistencies contained in the medical records as to the date when the accident occurred.

The court deferred to the commission on the factual determinations and otherwise affirmed that under Schoemehl v Treasurer of State, 217 S.W.3d 900 (Mo. Banc 2007) precedent, the dependent children at the time of the accident are entitled to lifetime permanent total disability payments.