On January 13, 2005, Governor Blunt appointed Bill Ringer as the public representative of the Labor and Industrial Relations Commission. This was the first Republican appointment to the position in a number of years, and members of the workers' compensation bar were curious about how the Commission would change. This article offers a review of the Commission's decisions for the third quarter of 2005.

There were fifty cases decided by the Commission in the third quarter. Of those cases, three were on remand from the Court of Appeals. The remaining cases were reviews of decisions from the state's administrative law judges under Section 287.470. Two things seem clear after reviewing these decisions. First, this Commission is going to affirm the administrative law judge in a vast majority of the cases. Of the forty-seven decisions reviewed, all but six were either affirmed or only slightly modified. Second, if the Commission reverses all or part of an award, it will probably be in the employer's favor. Of the six reversals, only one resulted in an increase in an award to an employee. Further, Commissioner Hickey – the employee represented – was the only Commissioner to dissent from any decision, and he did that thirteen times.

The remainder of this article will review those cases where the Commission reversed the administrative law judge, where there was a substantive dissent, and the cases remanded to the Commission by the Court of Appeals.

The only case that resulted in a complete denial of an administrative law judge's decision below was Kathleen Gibson-Knox v. Classic Printing, Injury No.: 03-115390. The Commission denied a claim for carpal tunnel syndrome previously found compensable by Administrative Law Judge Dierkes. In this case, the majority of the Commission found – contrary to the administrative law judge – that the employer's testimony regarding the amount of keyboarding performed by the employee was more accurate than the employee and several of her witnesses. The Commission first recited a summary of the body of law as it relates to repetitive trauma injuries. The majority ultimately decided that the employer did not expose the employee to repetitive motion capable of producing her symptoms. The dissent by Commissioner Hickey found the claimant credible and would have affirmed the administrative law judge below.

In Kevin Politte v. Arrowhead Contractors, Injury No.: 02-046033, an admittedly compensable death case, the only issue was whether or not the employee's mother, niece and nephew were dependents of the deceased employee. Administrative Law Judge Dinwiddie found that the mother was not, but awarded benefits to the niece and nephew. The Commission reversed the latter portion of the award, finding that the niece and nephew were not actually dependent on the employee. In his dissent, Commissioner Hickey relied on the employee's statements that he intended to provide support for the children.

David Harris v. Phillips Metals, Injury No.: 02-102986 and Ralph Honer v. Lange Stegmann, Injury No.: 02-149555 were both cases discussing the timing of permanent partial and permanent total disability benefit payments in cases involving the Second Injury Fund. The majority held that because the last injury resulted in permanent partial disability (emphasis added), Section 287.220.4 applied and, thus, “compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.” The result of this holding was that the claimant would never receive more than the maximum amount for permanent total disability. Commissioner Hickey believed the last injury resulted in permanent total disability, which meant Section 287.220.4 would not apply. Commissioner Hickey would have awarded permanent partial and permanent total disability benefits concurrently for a period of time.

In William Robertson v. Ameren U.E., Injury No.: 03-116517, the Commission reversed that portion of Administrative Law Judge Dinwiddie's award finding that the claimant sustained permanent partial disability resulting from second degree flash burns. The majority agreed with the administrative law judge's decision to award disfigurement, but found that because he had “no physical limitations and only limits himself concerning exposure to intense heat and sunlight” there was no resulting permanent partial disability. The majority did not “find credible, persuasive or worthy of belief, the medical opinions or conclusions of Dr. [David] Volarich.” Commissioner Hickey dissented, concluding that “employee's need to limit his exposure to heat and light and employee's sleep disturbances impair employee's efficiency in the ordinary pursuits of life.”

Glenda Fitzwater v. The Missouri Department of Public Safety and the Missouri Veteran's Home, Inj. No.01-007805, was the only case that resulted in the employee receiving more benefits than awarded by the administrative law judge. The Commission reversed that portion of Associate Administrative Law Judge Mason's award denying fees and costs. The employer argued that the employee was not the “prevailing party” under Section 287.203 because she did not prevail on every issue. The Commission disagreed and adopted the Black's Law Dictionary's definition of prevailing party: “the party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of his original contention.” The Commission also found the evidence supported an award of future medical benefits.

In addition to Gibson-Knox, above, the majority dealt with several other cases involving repetitive trauma. In Winfred Collier v. Ameren UE, Inj. No.: 02-145138, the majority affirmed the award of Administrative Law Judge Denigan denying benefits for carpal tunnel syndrome. The Commission agreed with the administrative law judge that the employer's expert was more credible than the claimant's. Specifically, the employer's doctor felt that the employee's job, although somewhat repetitive in nature, “did not entail significant repetitions, significant force, contact stresses or vibrations” and did not require “extremes of flexion or extension of the wrist.” Further, the employer's expert noted claimant's obesity and that the onset of hand symptoms coincided with the onset of perimenopausal symptoms. The employee's expert, on the other hand, failed to identify risk factors outside of the employment that caused the development of the symptom.

The dissent by Commissioner Hickey seemed to nit-pick Judge Denigan's decision, taking issue with several statements and findings by the administrative law judge that had no bearing on the case. For example, Commissioner Hickey took exception with the judge's mention of the three-month rule in his decision because it had no bearing on this particular case and derided his use of the term “ergonomics.” Nowhere in the dissent is there an explanation for why the decision was wrongly decided. In Gary McCurter v. Cassens Transport Company, Injury No.: 03-107640, on the other hand, Commissioner Hickey had a basis for his belief that Administrative Law Judge Denigan was incorrect. Although this case was similar to Collier, Commissioner Hickey would have adopted the opinions of the claimant's expert and awarded benefits.

In David Pierce v. BSC, Inc., Injury No.: 02-154331, the Commission affirmed Administrative Law Judge Fowler's award denying benefits for a repetitive trauma injury. Judge Fowler found that the named employer was not the last to expose the claimant to the hazard of repetitive trauma. The dissent by Commissioner Hickey would have found that the subsequent employments were not capable of causing repetitive trauma.

An interesting case not involving repetitive trauma was Cheryl Jennings v. Station Casino St. Charles, Injury No.: 97-433205. In this case, the majority affirmed Administrative Law Judge Brown's final award reversing a temporary award finding that the need for a discogram was causally related to an admitted work-related injury. The claimant developed an infection following the discogram. The infection resulted in a significant amount of disability over and above that from the original injury. At the final hearing, the employer introduced additional medical testimony which convinced the administrative law judge that the discogram was unnecessary. She found that the employer was not responsible for the bills already paid pursuant to the temporary award, and did not award the disability resulting from the infection. Commissioner Hickey dissented, finding that the “second guessing” began only after a bad result.

The “coming and going rule” was at issue in Garrick Clewis v. ProPipe Corporation, Inj. No. 99-137729. The majority of the Commission affirmed the award of Administrative Law Judge Denigan denying benefits. The claimant alleged an injury to his low back from a motor vehicle accident. The claimant clocked out after his regular work hours, but claimed he stopped off at a parts store to get some thermostats when the accident occurred. The claimant's credibility was severely damaged, however, in several ways. First, the receipts for the thermostats were dated the day before and several days after the date of accident. Second, although the claimant testified that he was pain-free from a prior low back surgery at the time of the accident, medical records showed that he had rated his low back pain a ten out of ten just one month prior. Finally, the employer testified credibly that there was no rush to pick up the thermostats, which contradicted the claimant's testimony.

The majority of the Commission issued a supplemental opinion in this case, although it is difficult to understand why. The supplemental opinion added nothing to the administrative law judge's opinion below. The dissent by Commissioner Hickey is also difficult to understand because the claimant's credibility was so severely damaged. Even if the accident was in the course and scope of his employment, it is unlikely that his injuries were causally related to the accident.

In Jay Downing v. Mud Brothers, Inc., Inj. No. 03-082129, the majority of the Commission affirmed the award of Administrative Law Judge Dierkes denying benefits for an injury that occurred when the claimant's truck was struck while he was putting air in a low tire. At the time of the accident, tha claimant was transporting tools and equipment belonging to the employer back and forth from the jobsite. The employee alleged that the mutual benefit doctrine applied, but the majority found that the benefit to the employer was so slight as to be nonexistent and that the benefit was, for the most part, the employee's. The claimant also relied on the dual purpose doctrine because he was putting air in the employer's air compressor at the same time that he was putting air in his tire. The majority refuted this claim as well, finding that this was a personal task not related to his employment.

The dissent by Commissioner Hickey believed the facts sufficient to support a mutual benefit, noting that “employee's personal vehicle was essential to the employer's business in order to transport the tools necessary to do the job and in order to secure the tools so that they would not be stolen or get wet.” Interestingly, Commissioner Hickey noted that the employer may have violated the Fair Labor Standards Act and encouraged the claimant to “pursue this matter further.”

Commissioner Hickey dissented in two other claims. In Michael Russell v. Mattingly Lumber & Millwork, 03-107618, the majority affirmed Administrative Law Judge Denigan's award of 5 percent disability to the body as a whole and denying future medical care. Commissioner Hickey would have awarded 15 percent permanent partial disability and future medical benefits. In Cathryne Reid v. Security Armoured Car Services, Inc., Injury No.: 00-085402, Judge Denigan denied the compensability of a knee problem in a claim involving an admittedly compensable ankle injury and the majority of the Commission affirmed. Commissioner Hickey dissented, believing that the lack of knee complaints prior to the accident supported a finding that the knee was compensable.

There was only one case remanded to the Commission that required a finding of fact. In David Martinez v. Nationwide Paper, Injury No.: 99-182907, the Commission concluded that a self-described “lumper” was not Nationwide's statutory employer. Although the injury happened on Nationwide's premises, there was no contract between Nationwide and the trucking company for whom claimant was working when he was injured. Further, the work that the lumper was performing was not Nationwide's usual course of business. As such, two out of the three tests enunciated in Bass v. National Super Markets, Inc., 911 S.W.2d 617 (Mo. banc 1995) were not met and the claim was denied.