Liability of Second Injury Fund
Last Injury Alone

In February of 2001, the Claimant sustained an injury to his low back while employed by ABB as a coil winder. The Claimant eventually underwent two surgeries, but due to the persistent symptoms, he was never able to return to work. In April of 2002, the Claimant filed a workers’ compensation claim against his employer and against the Second Injury Fund. The Claim against the Fund was based on the combination of his April, 2002, injury with various preexisting injuries.

At the Hearing, the Claimant testified that his current symptoms stemmed from the February of 2001 accident. He testified that with regard to his prior injuries, that following each injury he was able to return to work with no permanent restrictions and he was able to resume his normal duties after each injury.

The Administrative Law Judge found that the Claimant was permanently and totally disabled due to the February of 2001 work injury alone. The Administrative Law Judge found that although Claimant had sustained previous injuries that resulted in permanent disability, “it was the sequelae of his February 24, 2001, back injury which caused him to be unemployable in the open labor market.” The ALJ denied Claimant's claim for future medical expenses concluding that the Claimant failed to meet his burden of proof as no evidence was presented as to why he needed to take certain medications. Both the Employer and the Claimant appealed to the Commission. The Commission unanimously affirmed and incorporated the Administrative Law Judge’s Award in its decision. Both parties appealed to the Court of Appeals.

The Court of Appeals affirmed and reversed, in part, the Commission’s decision. The Court upheld the award of permanent total disability benefits, but reversed and remanded the denial of future medical benefits. The Court found that Claimant had met his burden of proof with regard to the need for future medical benefits. The decision was remanded to the Commission to enter an Award for future medical benefits.
 

ABB Power T&D Company v. William Kempker
MO APP WD 8/21/07
Case Number 67465 & 67480

Treatment Refusal
Reasonableness

The Claimant was a truck driver for Innovative Warehousing. While on the job, he was involved in a motor vehicle accident in which he sustained severe injuries. Claimant was taken to a hospital and died seven days later from his injuries. The Claimant’s treatment was complicated by his refusal, for religious reasons, to have a blood transfusion. Claimant was a Jehovah’s Witness.

Employer paid the funeral expenses and death benefits for nearly two years. When the benefits stopped, Claimant’s family filed a claim for death benefits.

At the Hearing, medical experts testified that Claimant’s death would have been preventable had he accepted a blood transfusion. Claimant’s family, and a Jehovah’s Witness church elder, testified that the refusal of a blood transfusion is a tenet of their faith. The Church elder also testified that a Jehovah’s Witness may seek forgiveness for sins. The Administrative Law Judge held that the Claimant’s family was entitled to benefits. The Judge found the Employee’s refusal was not unreasonable under §287.140.5 RSMo due to his beliefs as a Jehovah’s Witness. The Employer appealed the decision to the Commission.

The Commission found that the Claimant’s refusal to accept a blood transfusion was unreasonable due to the fact that a transfusion would most likely have allowed him to survive his injuries and because his religion allows one to seek forgiveness for one’s sins. The dependents appealed to the Court of Appeals.

The Court of Appeals reversed and remanded the Commission’s decision. The Court noted that their review of Missouri case law revealed no cases where the reasonableness of an employee’s decision to forego treatment was based on religious beliefs. The Court agreed with the Appellant’s argument for a liberal interpretation of §287.140.5, stating that “at the time of the accident…the Workers’ Compensation law was to be construed liberally.” §287.800 RSMo. The Court found that considering Claimant’s sincere and fervent religious beliefs, his decision to forego treatment was not unreasonable under §287.140.5. “We hold that the Commission’s decision was not supported by competent and substantial evidence. The statutory scheme dictates that religious beliefs be liberally considered, and we find that employee invoked his strong and sincerely held religious beliefs against a transfusion.”

Floyd Wilcut, dec., and Sharon Wilcut, v. Innovative Warehousing
MO App ED 6/19/07
Case Number ED88247

Exclusions
Farm Laborer Exemption

Claimant was employed by George Carden Circus International, Inc. Approximately eighty to ninety percent of the work that the Claimant performed was on employer’s ranch which produced much of the wood burned to heat its headquarters in Greene County. While working at the ranch, Claimant cut, stacked and loaded wood, mowed and planted grass, built fences, grew and cut hay, operated heavy equipment and cared for livestock. Away from the ranch Claimant built fences, cut wood and maintained the grounds at his employer’s headquarters. Eight days out of the year, Claimant would set up and tear down flooring when the Circus was performing.

In May of 2003, Claimant hurt his hand in the hay baler. Because the Workers' Compensation carrier denied coverage for the injury, George Carden personally paid a portion of Claimant’s medical expenses. When Claimant returned to work in June of 2003 he was only paid by Mr. Carden’s personal account and not by the Circus.

In late 2003, Claimant developed bilateral pain and stiffness in his hands. Due to the severity of his symptoms, the Claimant quit his job on March 20, 2004. A doctor subsequently diagnosed the Claimant with moderate to advanced right carpal tunnel syndrome with possible arthritic changes in his left hand. Claimant filed workers’ compensation claims for the injuries to his hands. On both claims he listed the Circus as his employer.

The Administrative Law Judge denied Claimant’s request for a temporary award of medical treatment for both hands and the request for temporary total disability benefits. The Administrative Law Judge held that Claimant was an employee of the Circus when he injured his left hand in May of 2003, but that he was not an employee of the Circus at the time he developed carpal tunnel syndrome in 2004. The Judge concluded that the Claimant was engaged in farm labor at the time of each alleged injury and, therefore, not eligible for relief under Missouri workers’ compensation law because farm labor is exempted under §287.090.1(1). The Commission affirmed the Administrative Law Judge’s decision and the Claimant appealed.

At the Court of Appeals, the Claimant contended that he was a handy man performing a combination of tasks which sometimes conferred a benefit on the Circus, and other times conferred a personal benefit to Mr. Carden. The Court of Appeals held that “whether an employee falls into the farm laborer exemption depends on the work performed and not the general occupation or business of the employer.” The Court affirmed the Commission holding that: “considering the ‘whole character’ of claimant’s work performed at the ranch we cannot say the Commission incorrectly concluded that Claimant was a farm laborer.”

David Ullum v. George Carden Circus International, Inc.
MO APP SD 5/23/07
Case Number 27971

Causation
Proof of Other Accidents

Claimant alleges that he sustained injuries when he was involved in a motor vehicle accident while driving a dump truck for his employer, the Missouri Highway and Transportation Commission. Claimant was subsequently examined and diagnostic tests revealed that he had a grade I spondylolisthesis at L5-S1 and a slightly bulging disc to the left at the L4-L5, which did not encroach on the nerve roots. It was determined that Claimant’s continuing back pain was caused by the spondylolisthesis which produced mechanical instability. In April of 1998, the Claimant underwent a lumbosacral fusion using pedicle screws and rods. Later diagnostics showed a stable fusion and Claimant was returned to work full time with no restrictions by Dr. Woodard in December of 1998. Claimant filed for Workers’ Compensation benefits in January of 1999.

In September of 1999, the Claimant quit working, claiming his pain was so bad he could not work. One month later, Claimant remarried. The marriage ceremony was significant in that the ceremony was held on horseback as the Claimant was an avid horseman. While riding around the arena at the conclusion of the wedding ceremony, Claimant was thrown from his horse. A witness testified Claimant “got up cringing” and was “kinda hurt.” Another witness noted the Claimant was limping.

In the months following the wedding, Claimant was seen by various doctors complaining of severe low back pain with pain radiating into his leg. In March of 2000, the Claimant was sent by his attorney to see a third neurosurgeon who performed a second surgery. The operative notes revealed that the Claimant had a disc herniation at L5-S1. The doctor opined the Claimant’s motor vehicle accident in September of 1997 was the cause of the disc herniation. The doctor had not been told of Claimant’s history of riding horses. Despite the second surgery, the Claimant’s symptoms worsened.

In January of 2004, a hearing was held and the Claimant presented expert medical evidence that all of his back problems had been caused by the motor vehicle accident in September of 1997. The employer presented expert medical evidence that the back injuries stemming from his work accident were successfully treated. Several witnesses testified on behalf of the employer as to the level of and frequency of Claimant’s activities, including horseback riding, following the September of 1997 accident.

The Administrative Law Judge found that the September of 1997 accident only caused Claimant’s injuries and disabilities up to December of 1998. Any other claimed injuries or disabilities after that date were not caused by the 1997 motor vehicle accident, but by the subsequent riding activities. The Administrative Law Judge awarded Claimant 20% of the body as a whole. The Claimant appealed to the Commission which affirmed the Administrative Law Judge’s decision.

Claimant then appealed to the Court of Appeals, contending that the Commission erred in not finding him permanently and totally disabled. Claimant alleged that the Commission erred because no doctor testified that he had sustained additional injuries to his back after December of 1998 and the Commission erred in concluding that his complaints and medical treatment after December of 1998 were not caused by the accident.

The Court affirmed the Commission’s factual findings that Claimant sustained a permanent partial disability of 20% of the body. The Court found that the Claimant’s argument lacked merit because it was his burden to prove all of the essential elements of his claim. Claimant bore the burden of proving that his accident at work, independent of other factors, caused him to be permanently and totally disabled. Further the Court noted that it was bound by the Commission’s determinations on issues of the credibility of the Claimant, the lay witnesses and the weight given to medical expert testimony.

David Roberts v. Missouri Highway and Transportation Commission
MO APP SD 5/18/07
Case Number 27109

Causation
Credibility-Sole Evidence

The Claimant filed a claim for workers’ compensation benefits alleging she had sustained a work-related injury to her lower back while employed by employer Langco Tool & Plastics on October 6, 1999. Employer contested the Claim. A hearing was held on December 5, 2005. Claimant’s testimony was the only evidence supporting her claim that a work related accident had occurred. Her testimony at the Hearing was inconsistent with the numerous statements she had made to health professionals in the past six years. The Administrative Law Judge denied the Claimant’s claim finding that she had “failed to meet her burden of proof on the issues of accident and medical causation.” The Commission, affirming the Administrative Law Judge, held that the Claimant’s “version of what of her alleged work injury on October 26, 1999 is neither credible nor persuasive.”

The Claimant appealed to the Court of Appeals. The Court affirmed, finding that the credibility of a witness is solely within the purview of the Commission. “Without belief in her testimony the Commission found that Claimant failed to carry her burden of proof that a work-related accident occurred."

Nancy Clayton v. Langco Tool & Plastics, Inc.
MO APP SD 5/14/07
Case Number 28145