The Labor and Industrial Relations Commission decided fifty-two cases in the fourth quarter of 2005.  The trends noted in the third quarter decisions continue, as the Commission affirmed the administrative law judge in all but one case, and the modifications to the award were in the employer’s favor.  There were ten dissents, including eight from Commissioner Hickey.  Commissioner Bartlett dissented from the majority in two cases pertaining to seatbelt and alcohol defenses. 

Perhaps the most interesting case decided by the Commission this quarter was a repetitive trauma claim involving multiple employers.  Although the entire Commission affirmed Administrative Law Judge Zerrer’s decision in Harold Copeland v. Associated Wholesale Grocers, Inj. No.: 00-173226, the Commission wrote a lengthy opinion supplementing Judge Zerrer’s award.  This was a unique case because both the judge and the Commission awarded benefits against the first employer rather than the last.  The facts of the case are almost certainly what drove this decision.

In Copeland, the claimant reported complaints, was diagnosed, was treated surgically and missed work all while employed with the first employer.  After he had reached maximum medical improvement, his employer changed hands.  He continued to perform the same work he had done prior to his complaints.  He filed the first claim for compensation after beginning work for the second employer.

Both the judge and the Commission pointed out all the factual reasons why this claim should go against the first employer.  Although both cited Endicott v. Display Technologies, 77 S.W.3d 612 (Mo. banc 2002), neither really seemed to apply the Supreme Court decision.  Endicott confirmed that the starting place for determining the last exposure rule is the date the claim is filed, which, in this case, would have been the last employer.  The work was the same, so it clearly would have been the type of work that is capable of causing repetitive trauma.  Although basically admitting this, the Commission took the position that “if in fact there were an injurious exposure with [the last employer], it would be the subject of an additional, separate and distinct injury.”  This certainly seems to dull the “bright line rule” so critical to this line of cases.  As this case is based on the law prior to the 2005 legislative changes, it may not have a great deal of precedential value, but it is still a must-read for lawyers practicing in workers’ compensation. 

Commission reversals of decisions below

There were no outright reversals of any decisions from the administrative law judges below.  In fact, only one case resulted in a substantive modification of the administrative law judge’s decision.  In Gary Lezama v. American Airlines, Inj. No.:02-116428, the majority reversed that portion of Administrative Law Judge Vacca’s decision awarding certain past and future medical expenses because there was no evidence supporting those claims. The majority also found there was no reason not to give the employer credit for an overpayment of temporary total disability benefits for a period of time after the claimant was released to full duties without restrictions.  Commissioner Hickey dissented, believing that the claimant’s testimony on the medical bills was sufficient evidence to support the award.  He also felt the claimant was unable to work despite the full-duty release. 

Dissents by Commissioner Bartlett

Commissioner Bartlett dissented in two cases.  In Garry W. Buescher v. Missouri Highway and Transportation Commission, Inj. No.: 00-158691, the majority affirmed the finding of Administrative Law Judge Dierkes that an employee’s failure to wear a seatbelt was not the cause of the injury as required by Section 287.120.5.  Judge Dierkes did not believe the employer’s medical expert’s testimony satisfied its burden of proof on the issue.  Commissioner Bartlett disagreed, noting the doctor’s expertise in treating hundreds of brain injury patients. 

In William R. Davis v. J. T. Pitts, Inj. No.: 01-126441, Administrative Law Judge Lane found the employer’s failure to post its alcohol policy precluded it from raising the defense found in Section 287.120.6.  Judge Lane also found there was no chain of custody for the urine sample upon which the alcohol defense was based.  Commissioner Hickey disagreed with both of these findings.  Because there was actual knowledge of the alcohol policy, she did not believe the technical violation of the statute should prevent the employer from raising the defense.  Further, she noted the urine sample was “inherently reliable because the testing was performed with the knowledge that it would be relied upon by the employee’s treating physicians in determining his care.”

 Dissents by Commissioner Hickey

As was the case in the previous quarter, most of the dissents were raised by Commissioner Hickey.  Three cases dealt with medical causation.  In Gary C. Shroder v. Clarkson Construction Company, Inj. No.: 02-148095, the commissioner would have reversed Administrative Law Judge Mueller’s finding that claimant’s pre-existing back problems were not aggravated by his work activities.  Commissioner Hickey simply disagreed with Judge Mueller’s findings.  Medical causation of a repetitive trauma claim was at issue in a second dissent by the commissioner.  In Casey Hudson v. Bi-State Development Agency, the issue can be succinctly described in this paragraph from Commissioner Hickey’s dissent: 

The Commission majority charactered Dr. Lipede’s testimony as “woefully deficient. . . when compared and contrasted with the facts of the case and the medical testimony and medical opinions rendered by Dr. Randolph.”  I have compared and contrasted the competing medical evidence and I come to the opposite conclusion.  It is employer’s medical evidence that is woefully deficient.

A final dissent from Commissioner Hickey on the issue of medical causation was found in William “Billy” Davis v. Associated Electric Cooperative, Inj. No.: 02-109968.  Although Administrative Law Judge Knowlan found an accident occurred, he did not believe it caused claimant’s medical complaints.  The commissioner disagreed, finding that the medical records and physician impressions confirmed that the accident caused a change in the employee’s physical condition.  He would have awarded full benefits to the claimant. 

Two dissents by Commissioner Hickey arose from decisions below regarding permanent disability benefits.  In Joseph Zimmerman v. City of Richmond Heights, Inj. No.: 01-152270, Administrative Law Judge Landolt found the claimant suffered a seizure, but awarded no permanent disability.  The majority affirmed, and noted that an expert’s finding that the claimant did have permanent disability as a result of the seizure was not attributable to the injury.  Commissioner Hickey disagreed, noting that sleep deprivation from work activities caused the seizure.  Permanent total disability benefits against the Fund were at issue in John Connors v. Arnold Muffler, Inc., Inj. No.: 00-046333.  Administrative Law Judge Brown found the claimant’s work at a church café was competitive, and the claimant was thus able to compete in the open labor market.  The commissioner felt  that because the church accommodated the claimant, this was not a competitive job. 

Jurisdiction was the issue in Clarence Krusen v. Maverick Transportation, Inj. No. 02-141643.  In this case, the majority wrote a supplemental opinion affirming Administrative Law Judge Holden’s decision that the last act necessary to complete an employment contract was made in Arkansas, not Missouri.  Both the majority and the dissent noted numerous facts supporting their decisions.  Ultimately, the majority concluded the claimant did not provide enough evidence to support his position that the employer hired him over the phone.  Commissioner Hickey relied on circumstantial evidence – including the fact that the claimant quit his prior job after that phone call – in agreeing with the claimant. 

Commissioner Hickey dissented in an interesting case involving the interpretation of Section 287.230.2,  which deals with payments for compensation upon the death of the claimant for reasons unrelated to the injury.  In Fred Schoemehl, deceased, v. Cruiser County, Inc., Administrative Law Judge Dierkes awarded benefits against the Fund only through the date of death.  Commissioner Hickey would have awarded benefits to the widow beyond the date of death.  He reasoned that case law held that permanent partial disability benefits could continue beyond the date of death, so permanent total disability benefits should as well.