Statistical Review from July 1, 2005 through June 30, 2006

This is the fourth quarterly review of the Labor and Industrial Relations Commission's decisions since Bill Ringer was appointed as the chair by Governor Blunt in early 2005.  An analysis of those decisions reviewed suggests the Commission has become more employer friendly and more likely to affirm the decisions from below than the previous Commission, and the statistics from the past year appear to support this. From July 1, 2005 through June 30, 2006, the Commission decided 193 cases, and affirmed the administrative law judge 87 percent of the time.  Of the 26 reversed cases, 17 were decided in favor of the employer or the Second Injury Fund, but only 9 favored the employee.  Commissioner Hickey, the labor representative (and the only hold-over from the previous Commission), was the most active dissenter among the Commissioners, registering 40 dissents.  Commissioner Bartlett, the industry representative, dissented three times and Commissioner Ringer not at all.

The following table shows the results of cases decided by the Commission over the last twelve months:

 

Quarter	No. Cases *	No. Affirmed	No. Rev.	Rev. (EE)	Rev. (ER)	Diss. (H)	Diss. (B)	Diss. R
3rd Qtr 05	47	41	6	1	5	13	0	0
4th Qtr 05	52	51	1	0	1	8	2	0
1st Qtr 06	44	34	10	6	4	11	2	0
2nd Qtr 06	50	41	9	2	7	8	1	0
Totals	193	167	26	9	17	40	5	0
% Total Cases		87%	13%	6%	12%	21%	3%	0%
* does not include remands from Court of Appeals
Rev. (EE) means case was reversed in favor of employee
Rev. (ER) means case was reversed in favor of employer
Diss. (H) = dissent by Commissioner Hickey
Diss. (B) = dissent by Commissioner Bartlett
Diss. (R) = dissent by Commissioner Ringer

Appellate Review of this Commission's Decisions

We are starting to see some Court of Appeals decisions from this Commission. So far, the higher courts have reviewed seven decisions from this Commission, and reversed two. In one, Jennings v. Station Casino St. Charles, --- S.W.3d ---, 2006 WL 1071499, the Eastern District Court of Appeals reversed the majority's finding that the disastrous results of an infection resulting from a discogram were not compensable. In this case, a majority of the Commission had affirmed the administrative law judge's final award reversing a different administrative law judge's temporary award. (See the November 2005 issue of the Missouri Bar Workers' Compensation Quarterly Review for an analysis of that decision). Commissioner Hickey had dissented from this decision.

The Commission was again reversed in Pierce v. BSC, Inc., --- Mo.App.3d ---, 2006 WL 461252, a Western District case involving repetitive motion. Pierce, the employee, filed a repetitive trauma claim against a former employer, BSC, Inc., who defended on the ground that subsequent employment aggravated his condition and thus, it did not have the last exposure. Again, the Commission affirmed the administrative law judge's finding that the employee's work with subsequent employers insulated BSC, Inc. from liability. (An analysis of this decision appeared in the November 2005 issue of the Missouri Bar Workers' Compensation Quarterly Review.) The Court of Appeals disagreed, finding there was no substantial evidence that “anything he did at Ford was of a nature to aggravate his shoulder condition before he filed his claim. It was only after he filed his claim that he attempted some overhead work at Ford that aggravated his injury.” Again, Commissioner Hickey had dissented from the majority's decision below. It should be noted that Commissioner Hickey also dissented in three of the five Commission decisions affirmed by the Court of Appeals. Those cases were Gibson-Knox v. Classic Print, 184 S.W.3d 201 (Mo.App. S.D. 2006) (Commission deemed employer's witnesses more credible than employee); Honer v. Treasurer of State, 192 S.W.3d 526 (Mo.App. E.D. 2006) (dealing with concurrent and consecutive permanent partial disability payments); and Harris v. Treasurer of State, 192 S.W.3d 531 (Mo.App. E.D. 2006) (same issue as Honer). There were no dissents in the remaining two cases, Smith v. Donco Construction, 182 S.W.3d 693 (Mo.App. S.D. 2006) (asymptomatic discitis and osteomyelitis were not caused by work activity) and Huffmaster v. American Recreation Products, 180 S.W.3d 525 (Mo.App. E.D. 2006) (parking lot case found compensable).

Review of Commission Decisions from the Second Quarter of 2006

During the second quarter of 2006, the Commission reversed or significantly modified ten cases. Of those, only two were decided in favor of the employee. The remaining eight favored the employer or the Second Injury Fund. Second quarter Commission decisions fit in nicely with the overall trend for the year, as noted in the table above. The following is a review of the decision reversals by the Commission for the second quarter of 2006 as well as the dissents by Commissioner Hickey and Commissioner Bartlett.

Commission Reversals of Decisions

In Garrett v. Wick's Truck Trailers, Inc., Inj. No. 02-133498, the Commission reversed the decision of Administrative Law Judge Zerrer awarding the claimant permanent total disability benefits from the Second Injury Fund. The employee suffered from post-traumatic stress disorder in the form of nightmares after serving in Vietnam, but was not diagnosed until 2000. He later suffered an injury to his right shoulder which he claimed combined with his prior post-traumatic stress to make him permanently and totally disabled. As usual, the case came down to a battle of the experts; however, the Commission found the claimant's experts unpersuasive. The Commission felt the employer's experts were convincing in showing the employee's post-traumatic stress syndrome only turned into a disability after the claimant's work-related shoulder injury, and the preexisting condition was not a hindrance or obstacle to employment or re-employment. Commissioner Hickey dissented from the majority's opinion, and would have affirmed the administrative law judge's decision.

In White v. Young Manufacturing Company, Inj. No. 01-155232, the Commission reversed Administrative Law Judge Percy's conclusion that the employee contracted an occupational disease. The Commission felt the employee contracted a disease of life to which the general public is exposed outside of the employment. The Claimant had developed deep vein thrombosis in his left leg, and he alleged it was caused by prolonged periods of standing still or motionless while at work. The Commission found there was no evidence to conclude that the employee stood motionless or stood still for any extended period of time, in order to establish a causal link between his employment and development of his deep vein thrombosis. Commissioner Hickey dissented from the majority opinion. He felt the employee established by a reasonable probability that his work activities caused his deep vein thrombosis. Furthermore, he felt the administrative law judge's award should be modified to include an award of future medical.

In John E. Adams v. Advanced Employment Concepts, Inj. No.: 99-151763, the Commission reversed Administrative Law Judge Brown's finding that the employee had a measurable, preexisting permanent disability of Atttention Deficit Disorder at the time of his work injury that was a hindrance or obstacle to employment or re-employment. The majority found the employee unbelievable and unconvincing, and found his expert physician's testimony fraught with inconsistencies and contradictions. Commissioner Hickey dissented, believing the treating physician relied on by the employee to be the most believable.

The Commission affirmed, reversed, and modified in part the award of Associate Administrative Law Judge Fisher in Jack Carte v. Tri-State Motor Transit, Inj. No.: 98-057227. Judge Fisher's award for unpaid medical expenses and future medical treatment based upon the employee's workplace fall was affirmed. However, the Commission modified downward an award of temporary total and permanent partial disability benefits based upon the testimony of medical experts. Finally, the Commission reversed Judge Fisher's award against the Second Injury Fund on the basis that there was no credible evidence to support a conclusion that preexisting disabilities from a finger amputation, heart condition, and prior back surgery rose to a level of such seriousness as to constitute a hindrance to employment or re-employment.

The Commission reduced from 25 percent to 15 percent the amount of permanent and partial disability suffered by the employee in Kay Koeller v. Western Union Financial Services, Inj. No.: 02-058377. In making this modification, the Commission relied upon its own authority to weigh expert testimony and to freely find a disability rating higher or lower than that expressed in medical testimony. The Commission ultimately concluded that the employee's ability to return to full duty at the same job supported a reduction in the percentage of permanent partial disability. Commisioner Hickey disagreed and articulated this point of view in his dissent, arguing that Judge Wenman's determinations of credibility should have been given more deference and that her decision should have been affirmed.

In Floyd Wilcut v. Innovative Warehousing, Inj. No.: 00-041020, the Commission concluded that an employee's refusal to accept a life-saving blood transfusion for religious reasons was unreasonable and broke the causal link between the work-related accident and his death. Therefore, the Commission reversed the decision of Chief Administrative Law Judge Knowlan, and found that the employer is not liable for death benefits in the case. The employee was injured in an automobile accident arising out of and in the court of employment, making it necessary for him to undergo surgery. His family refused physician recommended blood transfusions necessary to save his life on the grounds that the transfusion would violate his religious beliefs as a Jehovah's Witness. The Commission followed the decision in Martin v. Industrial Accident Commission, 304 P.2d 828 (Cal. App. 1956), to determine whether the employee's refusal to submit to a blood transfusion was reasonable in light of all the evidence, including his religious beliefs. The Commission found that although the employee had a right to exercise his religious beliefs, the employer should not have to bear the consequences that resulted from that choice.

In Jack Bell v. Consolidated Personnel, Inj. No.: 03-122966, the Commission examined the credibility and trustworthiness of the evidence to determine that the employee in this case did not sustain an injury by accident arising out of and in the course of his employment. In making this finding, the Commission overturned the decision of Administrative Law Judge Wenman. Inconsistencies and exposed falsities in the employee's testimony lead the Commission to believe that the employee's injury was not the result of an accident arising out of and in the course of his employment and was instead due to another cause.

In Charles Kelson v. Admiral Limousine Service, Ltd., Inj. No.: 01-039389, the Commission modified the date an award of permanent total disability benefits from the Second Injury Fund began to a period beginning nearly three and a half years earlier than that found by Administrative Law Judge Kohner's. The employee had reached maximum medical improvement at the earlier date and, as such, he was entitled to the award from that point forward.

In Pamela Bates v. Ponderosa, Inj. No.: 99-013898, the Commission modified Administrative Law Judge Brown's determination of the proper rate for temporary total disability. The employee submitted evidence of her earnings for seven pay periods, each two weeks in length. Judge Brown computed the employee's temporary total disability based upon six of these seven pay periods due to what was perceived as the employee's absence during part of the pay period that was not included. The Commission disagreed with this calculation and modified it to include all seven pay periods, spanning the fourteen weeks prior to the employee's injury. This calculation was based upon the lack of evidence to show the employee had missed any regular or scheduled work during the week in question. Commissioner Hickey dissented, asserting his belief that Judge Brown's calculation of temporary total disability was appropriate.

In Desiree King v. J. Bathe Electric Company, Inj. No.: 97-449870, the Commission modified the award by Administrative Law Judge Vacca finding that the employee's permanent total disability was due to the last injury alone. The Commission found the medical and vocational evidence showed that the last injury alone was not sufficient to render the employee permanently and totally disabled. Further, it demonstrated that the employee suffered preexisting depression and disability to the lumbar spine, both of which were obstacles to employment. These preexisting disabilities and the disability attributable to the employee's accident combined to render the employee permanently totally disabled, making the Second Injury Fund liable.

Other Commission Decisions

The Commission acted upon a Supreme Court mandate in Tracy Farmer Cummings v. Personnel Pool of Platte County, Inj. No.: 91-193274. In doing so, the Commission reduced the award of past medical expenses to reflect the Supreme Court's holding that the employee is not entitled to recover any portion of the express that she is not personally liable for. The Commission also evaluated the employee's change of condition and found that it had become substantially worse since the original award. The steroids used to treat the employee's asthma lead to premature diabetes, cataracts, osteoporosis, and demineralization of her bones, the combination of which made her unemployable. As such, the Commission increased the previous permanent disability award to permanent total disability.

The Commission affirmed the decision by Administrative Law Judge Dierkes in Rebecca Wilmoth v. New Prime, Inc., Inj. No.: 99-115003. Once a healthcare provider has presented testimony and evidence to show that its charges are fair and reasonable, the burden shifts to the employer to prove that the bills were unreasonable and unfair. In this case, the employer failed to prove that the provider typically received less than what it billed for the employee's treatment. Thus, employer's affirmative defenses failed.

In Michael Pursifull v. Braun Plastering Company, Inc., Inj. Nos.: 03-108375 & 03-147759, the Commission affirmed the decision of Administrative Law Judge Fischer, denying compensability for each of employee's two accidents. In the case of each injury, the employee did not satisfy the notice requirement set forth in RSMo 286.090 because the employer received neither written notice nor actual notice of either accident. On top of this, the employee failed to prove causation for either accident. Even though the employee was involved in two separate accidents, he still had the burden of proving the specific injury caused by each. It is not sufficient to speculate that the employee's resulting injury could have been caused by one of the two accidents. Because the employee failed to prove medical causal connection between each accident and the alleged injury, compensability on his claim was denied.

Other Dissents by Commissioner Hickey

Commissioner Hickey dissented in Dana Jones v. AAA Automobile Club of Missouri, Inj. No.: 02-030519. He felt that the employee's disc herniation was caused by his work accident and resulted in a permanent partial disability of 20 percent to his whole body. He would have reversed Administrative Law Judge Denigan's finding of no compensability.

Commissioner Hickey strongly dissented in Edmond McNack v. Jackson County Sheriff's Department, Inj. No.98-034419, in which the Commission affirmed Administrative Law Judge McKeon's award and provided a supplemental opinion to express its rationale. In this case, the employee was bit by a prisoner, requiring him to undergo HIV prophylaxis. He subsequently developed sarcoidosis, the compensability of which was at issue here. The Commission weighed the testimony of two medical experts and found that the most credible and convincing evidence showed that there is not support for the proposition that the administration of HAART medications leads to the development of sarcoidosis in HIV-negative individuals. Commissioner Hickey's dissent found that the testimony of the medical experts combined with other corroborating evidence made it reasonably probable that the employee's sarcoidosis was caused by HAART medications.

He also dissented from the majority's decision affirming Administrative Law Judge Denigan in Raymond Russell v. Wagner Electric Corp., Inj. No.: 94-204948, finding that the employee's claim for occupational disease was barred by the statute of limitations. The statute of limitations began to run at the time the occupational disease was reasonably discoverable. Evidence showed that the employee was aware that his arthritis was aggravated by his job duties during the time he worked for his employer and that various doctors had placed work restrictions on him. The Commission affirmed that the employee's condition was reasonably discoverable and clearly disabling no later than January 4, 1994, and reiterated that the employee failed to file a claim for compensation until July 15, 1997. Thus, the employee's claim was barred by the statute of limitations. Commissioner Hickey felt it was not reasonably apparent to the employee that his arthritis was caused by his employment until 1997 when a physician suggested it might be so.

Dissents by Commissioner Bartlett

Commissioner Bartlett dissented from the Commission in its affirmation of Administrative Law Judge Landolt's decision in Alicia Jennings v. Bank of America, Inj. No.: 03-142281. Commissioner Bartlett felt that the employee's pre-existing diabetes and obesity were the cause of her carpal tunnel syndrome, and her work activities were only a minor factor.