Workers' Compensation Quarterly

Rule of Necessity
Scope of Review

The Claimant was at work repairing a water line when he was struck by a swinging backhoe bucket. He filed for a workers= compensation claim against his employer and the Second Injury Fund. The Administrative Law Judge awarded permanent partial disability benefits from the Employer and found the Second Injury Fund liable for permanent total disability benefits as a result of the combination of his work injury with his prior disabilities. The Employer appealed the Award to the Commission. The Second Injury Fund did not file an application for review.

Only two of the Commissioners sat in on the oral argument before the Commission because one of the Commissioners was a former partner of the firm representing the Employer. The Commission issued a final award reducing the Employer=s total permanent partial disability liability and vacating the award of past and future medical benefits and additional temporary total disability benefits. The Commission also set aside Claimant=s permanent total disability award against the Second Injury Fund. The Commission=s decision was a two-to-one vote requiring the third Commissioner to enter the case to cast the deciding vote under the “Rule of Necessity.@ The Claimant appealed.

The Court of Appeals held that the participation of the third Commissioner was proper and stated that “the ‘Rule of Necessity’ allows an otherwise disqualified decision maker to participate if a decision is necessary and there is no alternative.@ The Court of Appeal, however, reversed and remanded, in part, the Commission=s Award setting aside the Administrative Law Judge=s Award of permanent total disability benefits from the Second Injury Fund. Although the Court did take into consideration the Commission=s broad powers, the Court held that, because the issue of the Second Injury Fund’s liability was not on appeal before the Commission, the Claimant lacked notice and an opportunity to be heard.

Robert Stonecipher v. Poplar Bluff R1 School District
MO APP SD 11/14/06
Case Number 27653

Causation-Idiopathic Condition

The Claimant, an airport police officer employed by the City of St. Louis, suffered a seizure while driving his city-owned vehicle during the course of his patrol duties. As a result of the seizure, the Claimant lost control of the vehicle which caused it to hit another car, hit a utility pole, a building and a parked vehicle. Claimant suffered serious injuries as a result of this accident. He filed a workers= compensation claim against the City of St. Louis and the Second Injury Fund. The Administrative Law Judge denied compensation concluding that Claimant=s injuries did not arise out of his employment as an airport police officer because the seizure was idiopathic and wholly unrelated to work.

The Commission reversed the Administrative Law Judge’s decision and awarded permanent total disability benefits, temporary total disability benefits, and past and future medical expenses and benefits against the Employer. The Commission concluded that Claimant sustained his injuries due to an accident arising in the course of employment. The Commission found that Claimant=s employment "had placed him in a position where the consequences of his blacking out precipitated by an idiopathic occurrence were markedly more dangerous than if he had not been so employed." The Employer appealed contending that a causal connection did not exist between the condition of the workplace and Claimant=s injury because his injury was idiopathic in nature and employee was not engaged in an activity unique to the workplace at the time of the accident.

The Court of Appeals upheld the Commission’s decision and also concluded that Claimant=s injuries were exacerbated by the fact that he suffered a seizure while driving a car which he was required to drive as part of his employment.

Leslie Dubose v. City of St. Louis
MO APP ED 11/15/06
Case Number ED87865

Last Exposure Rule

Claimant, a steel worker, was employed with BSC Inc. for five months in 2002. Three of the months at BSC Inc. were spent installing large steel plates. Claimant subsequently worked for different employers performing lighter tasks such as welding and driving forklifts. In March of 2003, the Claimant went to work as a floater on the assembly line at Ford performing various repetitive tasks. After working at Ford for just two weeks, the Claimant began experiencing bilateral shoulder pain. He did not report his problems with shoulder pain to his employer. Five months later, Claimant filed a workers' compensation claim again BSC for his shoulder injury. The Administrative Law Judge, applying the last exposure rule, denied Claimant=s Claim against BSC finding that he had been exposed to aggravation to his shoulder injury for more than three months at Ford before he filed his Claim against prior employer BSC. The Commission affirmed. The Claimant appealed.

The Missouri Supreme Court held the Commission properly applied the last exposure rule in finding that BSC was not liable for Claimant=s repetitive injury. The Court, citing Section 287.067.7 RSMo 2000, found that the record contained sufficient evidence that Claimant engaged in repetitive work using his shoulders for more than three months at Ford. As such, the exception to the last exposure rule was inapplicable.

David Pierce v. BSC, Inc.
Supreme Court of Missouri 12/05/06
Case Number SC87689

The Claimant was a spiral line operator for Employer, a manufacturer of rubber hoses, from 1988 to March of 2003. His job required repetitive use of his hands and shoulders. Claimant started seeing doctors and physical therapists for problems with both upper extremities in 2000. By June 2001 Claimant had undergone surgery on both wrists and his right shoulder.

On June 25, 2002, the Claimant saw Dr. Lents for a post operative exam following the June 11, 2001, arthroscopic surgery to excise cartilage from the joints of his left wrist. At that time, the Claimant mentioned that he had recently tripped over a garden hose at home and that he was now experiencing additional swelling and pain in his left wrist. On exam, the doctor noted that the left wrist was more swollen than before. Dr. Lents placed Claimant in a short arm cast. Dr. Lents reexamined Claimant on August 30, 2001 and found that he may be developing a little reflex sympathetic dystrophy (“RSD”.) Claimant then saw Dr. Strecker for bilateral wrist pain. Dr. Strecker noted ulnar positive variance or TFC irritation as a stimulus to the RSD. On December 4, 2001, Dr. Strecker performed a wrist arthroscopy with partial synovectomy and debridement of TFC as well as ulnar shortening on Claimant’s left wrist. On December 20, 2002, Dr. Strecker performed a fusion of the left wrist.

On February 14, 2004, Dr. Richard Lehman evaluated Claimant. Dr. Lehman found Claimant to be at maximum medical improvement. He opined Claimant had good mechanics in his left hand despite the wrist being fused. Dr. Lehman found Claimant’s numerous complaints not related to his work.

The Administrative Law Judge denied Claimant’s Claim for Compensation relating to the post June 11, 2001, surgeries performed on Claimant’s left wrist. The Administrative Law Judge also denied his claims for RSD in the left upper extremity, myofacial pain in shoulders, anxiety, depression, sleep problems, restless leg syndrome, future medical benefits, and permanent total disability benefits. The Commission concurred with the Administrative Law Judge finding that the fall at home aggravated Claimant’s work-related condition and made it more symptomatic and disabling. The Commission further determined that the Claimant had failed to establish that his conditions and surgeries following June 11, 2001, were clearly work-related and that work was a substantial factor in creating these disabilities. Claimant appealed.

The Court of Appeals found that the evidence supported a finding that the wrist problem and RSD were not work-related. The Court further held that Claimant had failed to meet his burden of proof that his claims for depression, anxiety, restless leg syndrome and sleep issues were work-related. Rather, the Court found that “Claimant’s complaints of anxiety and depression appear to be connected with his ‘significant non work-related personal hardships.’” Additionally, the Court affirmed the Commission’s decision that denied the claim for permanent total disability benefits and the Commission also denied future medical benefits. The Court, however, reversed and remanded the Commission’s determination relating to the Claimant’s myofascial pain syndrome in his shoulders. The Court found that Claimant had met his burden of proof by way of his Doctor’s testimony. The cause was remanded with directions to the Commission to enter an Award for permanent partial disability resulting from the myofascial shoulder pain.

Claimant appealed the Award of the Commission’s finding that there was no causal connection between ill health and an electric shock suffered at work. On November 9, 2000, Claimant received an electrical shock to his body while testing transformers as part of his job for Employer ABB Power T&D in Jefferson City. The jolt caused him to be thrown against a barrier fence and fall on one knee, but he did not lose consciousness. He was taken to the hospital and released the next day. There was no evidence of heart damage or burns from the electric charge. The Claimant, who was 57 at the time of the injury, had been treated for heart ailments since age 40. His previous heart problems included intermittent atrial fibrillation, mitral valve prolapse and mild hypertension. Records showed that the voltage would have been somewhere in the broad range between 5,000 and 70,000 volts.

One week following the accident, Claimant experienced an increase in frequency and severity of his heart problems. Eventually the Claimant had to have a pacemaker implanted and he was not able to return to his work at ABB Power.

The Administrative Law Judge entered an award denying compensation and the Commission affirmed. Both the Judge and the Commission noted that diagnostic testing performed shortly after the accident revealed no physical changes to Claimant’s heart. They also relied on the Employer’s cardiologist, Dr. Stephen Schuman, who opined that the electric shock was not a substantial factor in causing a change in the frequency and severity of the Claimant’s heart problems. Employee’s expert, Dr. Harold Kanagawa, testified that the electrical shock was a substantial cause of Claimant’s cardiac problems.

Claimant appealed the Award denying him compensation. He contended that the substantial evidence established a causal relationship between the electrocution and his current state of bad health. The Court of Appeals affirmed the Commission’s findings that that there was no causal link between the Claimant’s condition and the asserted cause.

In this case, the issue before the Supreme Court was whether an employee’s right to permanent total disability benefits extended to the surviving dependents when the Claimant died from causes unrelated to the work injury. The injured employee, Mr. Schoemehl, filed a workers’ compensation claim for a knee injury in 2001 against his Employer and the Second Injury Fund. A month after his temporary total disability benefits began, Claimant died of causes unrelated to his knee. His surviving spouse settled with the Employer and the case against the Second Injury Fund was tried before an Administrative Law Judge. The Judge found that Employee Schoemehl had been rendered permanently and totally disabled by a combination of his knee and his prior injuries and awarded the Claimant permanent total disability benefits until his death which amounted to $1,157.01. The Judge denied extending the Claimant’s permanent total disability benefits to the surviving spouse or dependents. The Commission affirmed. Appellant appealed arguing that as Schoemehl’s dependent, she was considered an “employee” under the workers’ compensation act.

In a four to three decision, the Supreme Court reversed the Commission. The Supreme Court analyzed several statutes in reaching their decision: Section 287.230.2 RSMo 2000, Section 287.200.1 RSMo 2000,and Section 287.020.1 RSMo 2000.

Section 287.230.2, provides that when an employee is entitled to compensation and death ensues, compensation ceases when the employee dies from causes not related to his work injury, “unless there are surviving dependents at the time of death.” The Court noted that the statute section made no distinction between compensation for permanent total disability benefits. The Court held that under this statute Mr. Schoemehl’s right to both, accrued and unaccrued permanent total disability benefits, survived to Mrs. Schoemehl as her husband’s dependent.

The Court then looked at the provisions of Section 287.020.1, Section 287.200.1, and Section 287.200.1 which defines the duration of permanent total disability: “Compensation for permanent disability shall be paid during the continuance of such disability for the lifetime of the employee at the rate of weekly compensation…” Section 287.020.1 provides that any reference to an injured employee in the workers' compensation law “shall, when the worker is dead, also include his dependents.” The Court interpreted Section 287.200.1 as having two separate, consistent clauses establishing the duration of permanent total disability benefits. The “during the lifetime of the employee” clause provided that if the injured worker did not recover - the “employee” is entitled to compensation during her lifetime. Thus, the Court concluded that since Mrs. Schoemehl was her husband’s dependent, Section 287.02.1 required that she be considered the “employee” under Section 287.200.1; therefore she was entitled to compensation under Section 287.230.2.

In a dissenting opinion, Justice Stith noted that under Section 287.200.1 RSMo 2000, an injured worker must meet two prerequisites before he is entitled to permanent total disability benefits: (1) the continuance of the permanent total disability and (2) the continuance of the employee’s life. Even if dependents were included in the definition of “employee” and the employee’s life extended to his dependents, the statute did permit payment of permanent total disability benefits after his death because the disability stopped at the end of the injured person’s life--“his family is not disabled.”

Claimant filed a workers’ compensation claim against Employer PPG industries. The Claim was heard before the Administrative Law Judge on 7/11/05. The Administrative Law Judge held the record open until 9/15/05 so Claimant could be rated and submit the ratings to the Judge. At Employer’s request the Judge extended the final date for evidence until 10/14/05 so that the Employer could submit responsive evidence. The Judge issued her Award on 10/5/05. The Employer filed a motion to set aside the Award claiming that it was erroneously entered before the extension to submit its responsive evidence had lapsed. The Judge issued an amended award on 10/19/05 with the submitted evidence incorporated, which still favored the Claimant

Employer appealed to the Commission on 10/29/05. The Commission dismissed the application because it had been submitted more than 20 days after the 10/5/05 Award. The Employer appealed the dismissal. The Commission cited Section 287.610.6 RSMo 2000, in its order, suggesting that it had determined the Judge lacked jurisdiction to issue the subsequent 10/19/05 Award. Section 287.610.6 precludes a Judge from reviewing its award except within twenty days to correct a clerical error.

The Court of Appeals reversed the Commission denial holding that the Employer’s Application on 10/28/05 was timely filed. The Court concluded that since the ALJ recognized that the 10/5/05 award was issued before the close of all of the evidence, and corrected the situation by accepting the responsive evidence and vacating the first award, the 10/19/05 Award was valid.