Below are the reviews of workers' compensation opinions from the Labor and Industrial Relations Commission for the third and fourth quarters of 2006. Only opinions from the Commission are reviewed and summarized.

JULY OPINIONS

In Korenak v. Marina Bay Resort, Injury No. 92-187060, the Commission affirmed and modified, in part, the Administrative Law Judge’s conclusion denying compensation to the employee. The Commission’s modification merely noted that it did not find credible testimony of the employee regarding the history of his jaw problems. The Commission did not otherwise modify the decision, as it affirmed the denial of the employee’s claim for compensation. One Commissioner concurred, but stated he believed the decision of the Administrative Law Judge should have been affirmed without modification.

In Clark v. Brookfield Fabricating Corporation, Injury No.: 03-005045, the Commission modified the decision of the Administrative Law Judge, finding that the permanent partial disability award was excessive, and, consequently, not supported by the competent evidence in the record. The Judge awarded 30 percent permanent partial disability to the left hand at the wrist joint and 10 percent permanent partial disability to the right thumb. The Commission concluded that there was no proof of significant injury beyond that to the left index finger and awarded 30 percent permanent partial disability of the left index finger. 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 opinion of one doctor, Dr. Ross, was not credible as it was based on self-serving history of the injury as given to him by the employee, and that the other doctor’s rating was more credible. The remainder of the Judge’s decision was affirmed.

In Sebra v. The St. Louis National Baseball Club, Inc., Injury No.: 98-108270, the Commission affirmed and modified in part the decision of the Administrative Law Judge. The Commission rejected the Judge’s cap on the attorney fees. The Commission concluded the employee’s attorney was entitled to a fee of 25 percent of the benefits awarded for necessary legal services rendered to the employee. The remainder of the Judge’s decision was affirmed.

AUGUST OPINIONS

In Ronald Combs v. Edith James Steel, Inc., Injury No. 03-140605, the Commission modified the decision of the Administrative Law Judge, finding the Claimant was permanently and totally disabled when combining the disabilities attributable to the primary injury and the pre-existing conditions and injuries. Accordingly, they found the Second Injury Fund liable for permanent total disability benefits pursuant to RSMo § 287.220. The Claimant in this case had been employed as an ironworker for thirty-three years, when he suffered a back injury while lifting something at work. Prior to the primary back injury, the Claimant had also suffered a separate back injury which he settled for 13 percent permanent partial disability to the body as a whole. The Claimant also had a long list of disabling conditions, briefly including: a severe laceration to the right wrist tendons, right carpal tunnel syndrome requiring surgery, post-traumatic stress disorder, an injured left shoulder, a right knee arthroscopic repair, bilateral elbow pain requiring cortisone injections, and finally, a car accident that put the Claimant in a coma for two weeks and caused residual effects with his thought process. The Commission determined that the three expert’s opinions the Claimant put on regarding his permanent total condition were never impeached or neutralized in any fashion, thus, they were credible, believable and trustworthy.

In Stephen Craig v. Bentley Trucking, Inc., Injury No. 01-127626, the Commission modified the award of the Administrative Law Judge on the issue of future medical care and treatment. The Commission awarded the Claimant future medical care and treatment to cure and relieve the effects of his burn injuries to his bilateral upper extremities, concluding the Claimant had established it was reasonably probable that he would need future treatment through competent, medical testimony. The Claimant put forth the opinions of two separate doctors that established his need for future medical treatment and the Commission found “little if any medical opinions contra” to those opinions.

In Charles Curtis v. Daimler-Chrysler Corp., Injury No. 03-072619, the Commission found the amount of compensation payable by the Employer for permanent partial disability was excessive. The Commission did agree the Claimant was permanently totally disabled due to the combination of a prior disability and the primary injury, and, thus, the Second Injury Fund was liable to the Claimant for permanent total benefits. As for the Employer, the Commission felt that the medical evidence of the treating doctor, Dr. Wagner, to be more persuasive, trustworthy and consistent with the surrounding facts than the opinion of Dr. Volarich who only saw the Claimant one time. The Commission felt the employer was only liable for a 15 percent permanent partial disability to the body (or 60 weeks) as opposed to 50 percent permanent partial disability to the body as a whole (or 200 weeks).

In Eric Neathery v. Accurate Fire Protection Systems, Injury No. 02-073752, the Commission modified the Award of the Administrative Law Judge and awarded the Claimant additional weeks of temporary total disability benefits. Even though the Claimant was found to be at maximum medical improvement on September 10, 2003, the Commission felt the medical opinions offered by the Claimant demonstrated the Claimant continued to suffer from ulnar nerve compression which eventually culminated in the need for surgery. Accordingly, the Commission felt the Claimant was entitled to additional temporary total disability benefits from September 11, 2003, through June 29, 2004.

The Commission modified the Award of the Administrative Law Judge in Mary Ann Speckhals v. ALS Association, Injury No. 98-177043. The only modification of the Commission was the issue of future medical treatment. The Administrative Law Judge had awarded the Claimant a lump sum of $25,000.00 for her future medical needs and thereby absolved the Employer and Insurer from any additional liability for future medical benefits. The Commission found this to be an arbitrary and capricious decision and it felt the evidence did not support the Award. The Commission awarded the Claimant future medical care and treatment deemed reasonable and necessary to cure and relieve the effects of the injury. The Commission also held that the Employer would provide medical oversight of her medications.

In Dennis Dunn v. Jordan Concrete, Injury No. 99-042278, the Commission reversed the Award of the Administrative Law Judge and found the Employee did not sustain an injury due to an accident arising out of and in the course of employment. The Commission determined the injury incurred was directly due to the Employee’s disregard of several express orders of his Employer and his employment relationship had been terminated for the day prior to the occurrence of the injury.

In this case, the Claimant suffered an injury while cutting wood at his home located across the street from his employer. The Employer testified that ninety-nine percent of the company’s work occurred at job sites and that he would not pay employees for working at home. There was conflicting testimony between the Employer and the Claimant as to whether the Employer told the Claimant he could cut the wood at his home. Ultimately, the Commission found the testimony of the Employer to be more credible. It concluded that the injury occurred while the Claimant was engaged in a purely voluntary act, not only prohibited by the Employer, but unknown to and unaccepted by the Employer. The Commission relied on Fowler v. Baalman, 234 S.W.2d 11 (Mo 1950) for the conclusion that compensation could not be allowed when the Claimant went outside the sphere and scope of his employment and was injured by an activity that was expressly forbidden.

In Joseph Zimmerman v. City of Richmond Heights, Injury No. 01-152270, the Commission reversed its prior opinion by mandate issued on July 26, 2006, by the Missouri Court of Appeals for the Eastern District. The Court remanded the case to the Commission with directions to enter a new award finding the Claimant was permanently and partially disabled as a result of the seizure he suffered. It was determined that the Claimant’s sleep deprivation due to his job as a police officer was a contributing factor to his seizure. He had never previously suffered a seizure and it was found that his work was not a substantial factor in causing him to suffer one, although it was a precipitating factor. The Commission determined the Claimant suffered a 5 percent disability to the body as a whole as a result of his seizure.

In James Hudson v. LaFarge Construction Corp, Injury No. 99-182494, the Commission affirmed the Award of the Administrative Law Judge; however, one Commissioner wrote a separate opinion concurring in part and dissenting in part. This Commissioner agreed that the Claimant sustained a compensable injury, but felt the Administrative Law Judge’s Award should be modified to increase the compensation awarded to the employee and that the Claimant’s work-related upper extremity overuse conditions combined with his preexisting disabilities rendered him unemployable in the open labor market. He held the Claimant was entitled to permanent total disability benefits from the Second Injury Fund.

In Linda Nowlin v. Nordyne, Inc., Injury No. 01-164895, the Commission affirmed the findings of the Administrative Law Judge and awarded the Claimant no compensation for failure to give timely notice.

In Jimmy Culley v. Royal Oaks Chrysler Jeep, Inc., Injury No. 03-145458, the Commission affirmed the Award of the Administrative Law Judge by separate opinion. The Administrative Law Judge denied benefits to the Claimant because it did not find a medical causal relationship between the Employee’s conditions complained of and the alleged accident. The Commission agreed with the conclusion the Claimant was not entitled to benefits; however, the Commission denied benefits due to the failure of the Claimant to provide timely notice to the Employer, either written or verbal, and the Claimant failed to demonstrate that the Employer was not prejudiced by the Claimant’s failure to provide timely notice. This determination rendered all other issues moot. The Commission stressed that the mere fact an employer is aware an accident occurred does not impute notice that the accident was work-related.

In this case, the Claimant was employed as a car salesman. The Claimant’s girlfriend had bought a car from the Claimant’s employer, which the Claimant drove to work on occasion. On the date of the accident, the Claimant’s girlfriend had taken her car to the Employer to be serviced and the Claimant was driving the car back to his girlfriend when he was involved in a car accident. While the Employer was aware the Claimant was in an accident, they were never told the Claimant felt it was work-related and that knowledge could not be imputed to them because the Claimant was in between his normal shift when it happened. No one was actually aware the Claimant was delivering his girlfriend’s car at the time of the accident and it was not unusual for him to drive her car to work. Finally, the Claimant never requested the Employer provide workers’ compensation benefits and the Employer never received notice of the claim until fifteen months after the accident, when they received a copy of the formal claim for compensation from the Division of Workers’ Compensation. Furthermore, the Claimant’s failure to provide notice prejudiced the Employer because they were not given a timely chance to investigate or provide medical care to mitigate the injury.

SEPTEMBER OPINIONS

In David Kindel v. St. John’s Regional Medical Center, Injury No. 99-140949, the majority affirmed the Administrative Law Judge’s award, except to the extent that she awarded future medical treatment as indicated in the life-care plan by Dr. Terry Winkler. The Commission modified the award so that the Claimant is awarded future medical care as needed to cure and relieve him of the effects of the injury pursuant to the provisions of the Workers’ Compensation Act.

In Joseph Muller v. St. Louis Housing Authority, Injury No. 97-429684, the Commission modified the award and decision of the Administrative Law Judge solely on the issue of St. Louis Housing Authority’s (SLHA) liability for past medical expenses.

In Gary Sullivan v. Advanced Drywall Systems, Inc., Injury No. 00-022997, the majority affirmed the Administrative Law Judge’s Award except for two issues. First, the majority reversed the Judge’s decision to not award a 15 percent enhancement under RSMo §287.120.4. In the underlying case, the Claimant alleged the Respondent violated RSMo §292.090, which provides that scaffoldings must be secured to insure worker safety. The Administrative Law Judge denied the enhancement, finding that the Claimant’s scaffolding injury to be an “unfortunate accident” and was not a statutory violation, but instead would have required a finding that the Respondent had a history of faulty scaffoldings. The majority disagreed and found that Missouri law holds that fall of a scaffold is prima facie evidence of negligence on the part of the Employer and a violation of the statute.

Second, the majority reversed the Judge’s decision to limit the Claimant’s future medical care to be contingent upon the Claimant maintaining sobriety and freedom from non-prescription drugs.

In Ronald Bryant v. Color Art Printing, Inc., Injury No. 04-095986, the majority affirmed the Administrative Law Judge’s holding which denied all benefits in a final award after concluding that the Employee failed to meet his burden of proving medical causation. The medical expert for the Employer, Dr. Haupt, found that the Claimant’s injuries could have been causally related to his employment, but could not say so within a degree of medical certainty.

In Andrew Hayden v. Thi of Baltimore, Injury No. 04-064365, the majority affirmed the Administrative Law Judge’s decision to deem most credible respondent’s medical expert, Dr. Markenson, who testified that the pectoralis tear resulted in a 7 percent permanent partial disability measured at the shoulder.

OCTOBER OPINIONS

In Charles Nixon v. Pro Steel, Inc., Injury No. 96-406153, the Commission affirmed the Administrative Law Judge’s conclusion that an Employee was permanently and totally disabled from a work-related injury at the time of his death.

In Robert Grothaus v. Mehlville Fire Protection District, Injury No. 00-111075, the Commission found that the Employee was not permanently and totally disabled due to disability of the Employee’s primary knee injury in combination with his pre-existing obesity and osteoarthritis.

In Johnnie Saunders v. Model Cities Health Corp., Injury No. 02-126583, the Employee suffered injury in her employment as a nurse when a child pulled on her stethoscope, and caused her to fall off a stool onto her knees and strike her head on a metal door. The Judge found the Employee was permanently and totally disabled, awarded additional temporary total disability and unpaid medical expenses for knee replacement surgery, and awarded the Employee future medical care and treatment. On Appeal, the Commission modified the award, finding the Employee was only entitled to 15 percent permanent partial disability to the right knee, and denying all other benefits. The majority found the medical opinions of Dr. Weed, Dr. Zipper and Dr. Hood more credible than that of Dr. Zimmer or even the testimony of the Employee.

In Paul Probst v. Bill Wise, Injury No. 03-028988, the majority affirmed the decision to deny attorney fees and costs in defending the actions because Respondent did not allege error with regards to the Administrative Law Judge’s failure to make a finding that the Insurer defended this Claim without reasonable grounds, as required by Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. 2003) (holding that attorney’s fees are properly considered costs under § 287.560 where the issue is clear and the offense egregious).

NOVEMBER OPINIONS

In Ketchum v. Westran R-1 School District, Injury No. 02-100938, the Commission reversed the decision of the Administrative Law Judge. The sole issue was whether the Claimant’s fatal motor vehicle accident, which occurred on her way to school, arose out of and in the course of her employment.

The Administrative Law Judge felt the Claimant’s trip fell under the mutual benefit doctrine. The Claimant was employed as a reading recovery teacher, and witness testimony indicated she often spent time working on school work at her home to the benefit of her employer. Thus, the Administrative Law Judge found the accident occurred while the Claimant traveled from one employment situs (her home) to another employment situs (school).

The Commission reversed the decision of the Administrative Law Judge and found the death of the Employee was not attributable to an accident arising out of and in the course of her employment, but rather that the Claimant was merely going to work. It stated that, “if work is performed at home merely for the convenience of the employee, the going and coming trip is not a business trip since serving the employee’s own convenience in selecting an off premises place in which to perform work is not personal and not a business purpose.” It stated the Claimant took work home rather than completing it at her place of employment on her own initiative and volition and this action does not create a second site of self-employment.

In Chapman v. Swisher Mower, Injury No. 04-024122, the Commission affirmed the Administrative Law Judge’s findings regarding the nature and extent of disability and modified its decision regarding temporary total disability benefits for a period from June 1, 2004, through June 23, 2004. The Commission determined the evidence showed that the treating doctor excused the Claimant from work until he obtained a consultation from a neurosurgeon that occurred on June 23, 2004. It felt that the neurosurgeon’s opinion on June 23, 2004, was the first opinion to impose no work restrictions. Apparently, it did not find convincing the videotape of Claimant taken on May 15, 2004, which depicted Claimant aggressively mowing tall grass with a push mower, as convincing of his capabilities.

In Negri v. Continental Sales and Service, Inj. Nos. 88-177550 and 90-152835, the case was reviewed a second time by the Commission after Remand from the Missouri Court of Appeals for the Eastern District. The main issue on remand involved the part of the Award issued by the Administrative Law Judge which read:

I find the Employer/Insurer liable for providing Claimant with all mechanical devices that he can use safely to move himself. This includes, but is not limited to, motorized wheelchairs, scooters, modified vans and any other devices…