Just Because a Worker Injured on the Job Could Work Despite a Preexisting Medical Condition Did Not Disqualify that Condition from Serving as a Preexisting Disability

The case of Dirks v. Kraft Foods a/k/a Adair Foods was decided by the Western District Missouri Court of Appeals on July 14, 2015.

In this case both the employer and the Missouri State Second Injury Fund appealed the decisions of the Labor and Industrial awarding workers compensation for her knee cartilage injury (torn meniscus) requiring surgery from a work accident to her left knee and granting compensation for total disability for the combination of that left knee injury on the job with a preexisting right knee injury. While on the job the worker had tripped and fallen on an air hose and fell down onto her knees onto a concrete floor below and immediately felt pain in the left knee.

The injured worker’s own orthopedic surgeon claimed that the employee’s fall in the course of her work had caused the left knee meniscus (cartilage) tear, while the employer’s expert claimed the very same cartilage tear was caused by preexisting arthritis in the left knee. The worker’s own surgeon admitted that the worker’s knee had suffered some long-term arthritis since prior to her fall accident, but denied that it was the main cause or any cause of her knee cartilage tear. However, the company’s expert claimed that the worker’s torn left knee meniscus and arthritis were not work-related and thus not compensable (entitled to workmen’s compensation benefits) as a work-related injury. The injured worker hired a lawyer who filed a clam.

The Missouri administrative law judge who held the trial/hearing on the case decided for the employee, deciding that the worker’s fall on the job was the main cause of the meniscus tear. The judge also decided that the work-related left knee cartilage tear combined with the worker’s preexisting arthritic condition and right knee problems to make the employee permanently totally disabled, ordering the Missouri State Second Injury Fund to pay the difference between the workers compensation permanent partial disability benefits the judge made the worker’s employer and insurer responsible for and permanent total disability the judge made the Missouri Second Injury Fund responsible for paying. On appeal to the Missouri Labor and Industrial Relations Commission (LIRC) the Commission agreed with and affirmed the administrative law judge’s decision in favor of the injured worker and against the employer/their insurer and the Missouri Second Injury Fund.

Both the employer/insurer and the state Second Injury Fund appealed the decision of the Commission to the Missouri Court of Appeals for the Western District. The Missouri Court of Appeals heard this appeal. It agreed with and affirmed the decision of the Labor and Industrial Relations Commission that 1.) the employee’s slip and fall accident onto her left knee was the main cause of her left knee meniscal (cartilage) tear and need for meniscus repair surgery, and 2.) the employee’s left knee cartilage tear from the trip and fall on-the-job injury combined with her preexisting right knee arthritis condition to result in permanent total disability. Permanent total disability is always defined as the injured worker’s inability to compete in the open labor market.

Attorneys for the Missouri Second Injury Fund also appealed, arguing that since the injured worker’s preexisting right knee arthritis still allowed the worker to continue performing her job as a laborer at Kraft/Adair Foods, her preexisting arthritis could not have functioned as an obstacle or hindrance to employment, so that the work injury on the job to her left knee meniscus cartilage had no pre-existing disability to combine with in the first place to render her permanently totally disabled.

The Western District Court of Appeals disagreed with both employer/insurer and the State Second Injury Fund. It held that “it is well-established law that a preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the condition to escalate to the level of disability.” In other words, the appellate court decided that that a preexisting medical condition does not have to prevent a worker from doing their job in order to be considered a disability once a work accident brings the preexisting medical condition to the level of disability.

Attorneys for the employer and insurer argued that the Commission was wrong to believe the opinion of the injured worker’s surgeon who operated on her left knee injury from the fall to the concrete floor onto her left knee because employer’s/ insurer’s experts were more credible than the injured worker’s surgeon. The Court of Appeals pointed out that it was supposed to defer to and respect the Labor and Industrial Relations Commission’s credibility determinations as to which witnesses, including expert medical witnesses, to believe and which to disbelieve.

The appeals court also ruled that the Commission’s determination that the injured worker was entitled to future knee replacement surgery to her injured left knee whenever the left knee required it down the line should be deferred to and upheld. Once again, the Court of Appeals said that such determinations of the credibility of medical expert witnesses were to be left up to the Labor and Industrial Relations Commission, for which it would not normally substitute its own witness credibility determination. The appeals courts will only interfere with and substitute their credibility determinations for those of the Labor and Industrial Relations Commission when they find them to be totally against the evidence.

St. Louis Workers Compensation Center can defend and demand your rights to workers compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call Tom Hyatt for advice and assistance on any work-related injury suffered on the job in St. Louis City, St. Louis County, Jefferson County, Franklin County, St. Charles County, Warren County, Lincoln County, or any other counties in eastern Missouri within 125 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

The Language Used by Medical Experts in their Reports and the Injured Worker’s Testimony Can Sink His Case or Win His Case

The case of Malam v. Missouri Department of Corrections was decided by the Western District Missouri Court of Appeals on June 24, 2015. It shows that the language used by an injured worker’s expert in finding a particular event or accident on the job caused the injury is all important in the legal system’s determination whether a particular injury was “compensable,” meaning sufficiently work-related to entitle the injured employee to workers compensation benefits.

It is not enough for a worker to just prove he suffered a traumatic accident or strain to become entitled to workers compensation benefits. Missouri law clearly requires the worker to prove that the accident or event that preceded his injury actually was the main (primary) cause in causing the injury. The Missouri Workers’ Compensation Law in effect since the major changes legislature put into effect in 2005 make it clear that an accidental strain that merely triggers or precipitates the worker’s injury is NOT enough to entitle him to benefits.

The Malam case makes that crystal clear. In that case a majority of judges in the appellate court affirmed a Labor and Industrial Relations decision holding the injured worker’s hypertensive (high blood pressure) heart muscle problem (cardiomyopathy) to be at most a precipitating or triggering factor and not the primary causal factor. The employee lost the case in front of the Industrial Commission on appeal, and again on further appeal to the Missouri Court of Appeals.

The injured worker was a corrections officer working at a Missouri prison. An inmate he was escorting from one part of the prison to another started acting up and the officer had to restrain and take the inmate down. When the officer did this he felt a shortness of breath and his lungs filling up and began to spit up blood. His lungs suffered bruises and he became unconscious. A lung specialist found he had suffered no external trauma and gave the opinion that Officer Malam’s lung swelling trauma “precipitated” the lung problems but that his heart and lung conditions were preexisting and not mainly caused by the officer’s exertions in his takedown of the prisoner.

The officer’s attorney sent him to their own expert. That expert concluded that the takedown both “precipitated” and was the primary cause of the heart contusion. The Industrial Commission and the Missouri Western District Court of Appeals both decided that at most the exertion of the officer’s takedown of the inmate triggered but was not the main cause of the officer’s already existing heart and lung condition.

The Appeals Court majority pointed to the officer’s admission at the hearing before the workers’ compensation judge that he had testified at a previous deposition that his exertion at the time he took down the inmate was only minimal. This admission by the office himself together with the officer’s own expert’s saying that his exertion in restraining the unruly inmate “precipitated” the heart and lung bruising convinced the court that the corrections officer had not proven his entitlement to workers’ compensation benefits. That includes medical treatment and any money benefits.

The officer suffered no permanent disability he could get compensated for so he sought only payment of his medical bills for treating his hear and lung bruising. The state’s coverage of these extensive medical costs required to deal with his heart and lung bruising incident were denied. This case just goes to show how an injured worker’s own testimony (in this case that his exertion trauma was minimal) and his expert’s testimony (that the exertion had “precipitated”/triggered the heart and lung injury) can sink his workers’ compensation claim. This fit right in with a treating heart specialist’s earlier statement that the officer’s takedown of the inmate “precipitated” but was not the main cause of his heart and lung problems. Both the corrections officer and his medical expert should have been a lot more aware of what they said.

St. Louis Workers Compensation Center can defend and demand your rights to workmens compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call us for advice and assistance on any work-related injury suffered on the job in St. Louis County, the City of St. Louis, St. Charles County, Jefferson County, Lincoln County, Warren County, Franklin County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

Injured Worker Does Not Have To Be Actively Working at Moment When Injured on Job So Long as Accident Due To a “Hazard Present in the Workplace”

Workers injured on the job have all their rights to workers compensation benefits set out in the Missouri Workers Compensation Law. In 2005 the Missouri state legislature passed a major set of amendments deliberately attempting to make it a lot harder for workers hurt on the job to qualify for workers compensation benefits. Insurance companies hire skilled lawyers to fight all claims for such benefits based on every legal defense and obstacle they can think up to throw in as a roadblock to your getting workmen’s compensation. This includes benefits for medical treatment for the injury, temporary off-work (temporary total) benefits, and permanent disability benefits.

A good example of this tendency of employers and their insurers to use the 2005 changes in the law to deny and fight tooth and nail every single claim for workers compensation benefits by workers injured on the job is Section 287.020.3(2)(b) of the Missouri Workers’ Compensation Law. This provision of the law allows workers compensation benefits only for injuries that “arise out of and in the course of the employment,” and “only if the accident that caused the injury does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” As a practical matter workers compensation defense attorneys for insurance companies will raise and bring up any petty little legal excuse (defense) that would make the injury noncompensable as a work injury as a legal excuse to deny your whole claim: no medical treatment, no temporary off-work benefits.

A case called Wright v. Roto Rooter Services was decided by the Missouri Labor and Industrial Relations Commission on April 20, 2015 on appeal from the decision of an administrative law judge who conducted the trial of the case. The claim against the employer had been settled. Then Mr. Wright pursued his remaining claim against the Missouri Second Injury Fund. The worker was on his lunch break in the company lunch room when the chair he was sitting on while eating lunch collapsed, seriously injuring the worker’s back.

The injured employee got a lawyer who filed a workers’ compensation against the employer and settled it. That left open a claim against the Missouri’s Second Injury Fund. The Fund’s attorneys denied the claim arguing that the main cause of the accident had come from a risk unrelated to the worker’s employment because the worker was fat/obese. They claimed that the worker’s being fat would have made him be equally exposed to the hazard of having any chair he sat in collapse under off the job. The problem was that chair that collapsed under the guy was in his employer’s lunch room, not off the job site.

The administrative law judge decided against the Missouri Second Injury Fund in favor of the employee. Then the Missouri Attorney General’s office on behalf of the Fund appealed that finding for the injured worker to the Labor and Industrial Relations Commission claiming that the worker whose chair in the company lunch room collapsed under him could just as easily have had a chair fall under him off work in his normal nonemployment life because he was fat and that his being fat was the main/primary cause of the accident and injury.

The Commission upheld the decision of the administrative law judge and ruled in favor of the worker. It ruled that the worker did not have to have been actively working at that time of the accident that injured him when the chair collapsed under him in order to have been injured in the scope and course of his employment. It said: “the [Missouri] legislature clearly contemplated and accepted compensability of injuries sustained as a result of work-related risks even though employee was not at the time engaged in the performance of job duties (e.g. going to and coming from employer’s lunchroom or bathroom)….[workers’] compensation is not limited to workers injured while actively engaged in their duties (i.e. ‘working’).” The broken chair was a hazard present in the employee’s workplace, which included the employer’s lunch room, and that was enough to make the injury compensable as work-related under Missouri Workers’ Compensation Law.

St. Louis Workers Compensation Center can defend and demand your rights to workmens compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call us for advice and assistance on any work-related injury suffered on the job in St. Louis County, the City of St. Louis, St. Charles County, Jefferson County, Lincoln County, Warren County, Franklin County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

Need for Injured Worker To Get Own Expert Doctor’s Permanent Disability Rating

The general thrust of this blogpost is to show that it is the exception proves the rule.

Missouri Workers Compensation Law [Section 287.190.6(2)] clearly states that in order to prove the nature and extent of permanent disability (whether permanent partial disability or permanent total disability) an injured worker has suffered after the end of all their medical treatment, both the employee injured on the job or his employer and their insurance company are going to need to get a medical doctor to demonstrate and certify what injuries the injured worker has suffered and the percentage of permanent disability the employee’s work-related injuries have left him or her with.

The doctor who gives his official opinion on this is going to have to base that opinion upon a reasonable medical certainty that rest upon objective medical findings. It is not supposed to be based on mere guesswork or any kind of speculation or just on the injured employee’s say-so, but hard medical facts. It is the permanent medical disability rating that determines just how many weeks of permanent disability the injured worker is entitled to receive from their employer’s workers compensation insurance company.

The point I am making is that it would be crazy for any worker injured on the job who suffers a physical injury from their work activities to try to settle their claim for workmen’s compensation benefits with their employer or their employer’s workers compensation insurance company. The injured worker is going to have to hire a good workers compensation attorney to represent him. That attorney will know how to gather together all the worker’s medical records for treatment of the treatment the injury, get them to a good doctor who does workers compensation injury evaluations, and get from the physician a strong, convincing  final and permanent disability rating on the employee’s work injuries.

Once the injured worker’s attorney gets such a rating report from their own expert doctor the attorney can then give it to the insurance company attorney. Then if no settlement can be reached with insurance company the attorney can submit our own doctor’s report and permanent disability rating to  a workmen’s compensation administrative law judge at a hearing, fighting it out with the company-chosen doctor’s expected low-ball rating the insurance defense lawyer will be submitting to the same judge. How could any working guy or gal who suffers any kind of serious work-related injury possibly hope to fight their employer they got hurt working for and that employer’s insurance company by themselves? Always remember and keep in mind that it is the nature, extent and percentage of permanent disability of the employee’s  different work injuries that determines what kind of money the employer/insurance company will be able to drag out of the insurance company for his permanent disability to the different parts of his body.

Any worker injured on the job who has any kind of serious and substantial workman’s compensation case will need to get their own rating or the company will be able to get away with giving them little or nothing and way less money than they deserve for the permanent disability. You as a worker injured on the job have no real choice but to fight fire with fire and get your own doctor’s rating. Remember that you as the injured worker hurt on the job have the built in legal burden to prove everything about your work injury, while the insurance company’s defense attorney, as told what to do by the claim adjuster pressuring them to save money at your expense 24/7, has to prove nothing at all.

Attorneys such as Tom Hyatt at St. Louis Workers Compensation Center/Workmen’s Compensation Legal Clinic know how to work for you against the insurance company. He will advise you on all legal aspects of our work injury and your benefits and then represent you aggressively against the insurance company before the legal system. Now to the very narrow exception that proves the rule about the injured worker’s need to get their own medical and vocational experts to provide disability ratings on all their work-related injuries  they suffer either from work accidents or exposure to harmful poisons at work or from repetitive motion injuries sustained on the job and from the job.

In the case of Marciante v Charles Jarrell Contracting Company issued April 1, 2015 the Missouri Labor and Industrial Relations Commission decided that that “it is not necessary that physicians certify permanent disability in mathematical terms” and that a worker may establish disability with or without a rating provided there is other evidence to show the nature and extent of permanent symptoms, restrictions and/or limitations.” The injured worker in that case bent over to pop a line on a heating system when he suffered a herniated disc in his lower back that required surgery. Years earlier he had already suffered a previous work-related back injury and settled the claim and after filing a claim on his latest back injury his attorney got a doctor to evaluate him.

That doctor expert gave a medical opinion that the combination of the previous with the current job-related back injury, but did not specify exactly the percentage extent of permanent disability from the earlier back injury. The workers compensation judge hearing the case ruled that the doctor’s failure to specify the exact percentage of pre-existing disability to the worker’s back prevented her from making a legal finding that a combination of the previous with the current work injuries rendered the worker totally disabled for purposes of the Missouri Second Injury Fund. The Missouri Labor and Industrial Relations Commission disagreed, ruling that under Missouri Workers’ Compensation Law the lack of a doctor’s opinion as to the exact percentage of preexisting disability to the worker’s lower back did not prevent the judge from finding that the latest work injury combined with prior disabilities to render the man permanently totally disabled.

This case just goes to show that if the worker injured on the job as part of his work does not get a doctor working for him to examine him, diagnose what his injuries are from his latest work injury, his prior injuries, and whether they combine to render him totally disabled, he stands no chance whatsoever to win his claim. Only an attorney who regularly represents injured workers in filing and then proving with medical evidence their workers compensation claims could ever hope to meet the burden of proving what needs to be proven to a Missouri workers compensation administrative law judge in order to get awarded his proper benefits. The moral of the story is: ALWAYS HIRE AN ATTORNEY TO FILE, FIGHT AND REPRESENT YOU ON YOUR CLAIM, OR YOU WILL ALMOST CERTAINLY NEVER GET AWARDED YOUR PROPER WORKERS’ COMPENSATION BENEFITS! Do not try to prove your workmen’s compensation claim on your own since proving it would require the ability to prepare and produce complicated legal and medical evidence and testimony for a judge before he could rule in your favor and grant you your benefits. 

 St. Louis Workers Compensation Center can defend and demand your rights to workmens compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call us for advice and assistance on any work-related injury suffered on the job in St. Louis County, the City of St. Louis, Jefferson County, St. Charles County, Franklin County, Warren County, St. Francois County, Ste. Genevieve County or any other counties in eastern Missouri within 100 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

Complete Loss of a Use of Part of Body on Workers Compensation Law’s Schedule of Losses Can Be Stipulated (Agreed) To by Employer and Insurer’s Attorney

In the case of Romero v. Nelson Flooring, the injured worker who lost use of his left eye when a nail gun left him with ZERO visual acuity/ability to see. The Missouri Labor & Industrial Relations Commission held on appeal from a Missouri administrative workers’ compensation judge that the lack of specific evidence that the worker who lost all his vision in that eye did still entitle to an additional 10% tacked on to his permanent disability weeks for the eye even though there was no specific evidence in the record proving 100% loss of use of the eye but only an admission of loss of use from the defense attorney.

The employer and insurer’s defense attorney appealed that denial of the additional 10% disability (14 additional weeks of permanent disability since the eye is worth a total of 140 weeks) to the Missouri Court of Appeals on the grounds that there was insufficient evidence in the trial record at the hearing showing total loss of use of the eye.

The Labor Commission granted the injured worker an additional 10% disability over 100% of the left eye. The Commission decided in late March 2015 that even though no specific medical evidence of such 100% sight loss was ever put in the trial record at hearing by either the employee’s attorney or the insurance defense attorney, the fact that the defense attorney for Employer & Insurer agreed and stipulated to the total 100% loss of sight/visual acuity in the left eye entitled the injured employee who filed the claim to that additional 10%. This amounted to 110% of the maximum number of weeks Missouri Workers Compensation Law allows for a total loss of eyesight in one eye.

The Labor Commission held that the defense attorney’s somewhat vague agreement during the hearing where he conceded that the injured worker had lost complete use of the left eye was enough to support a finding of complete loss of use of the eye and thus entitled him to an additional 10% permanent partial disability (14 disability weeks) based on the concession and stipulation of the defense attorney, even without specific medical evidence of such total loss of visual acuity eyesight.

The injured worker had a good lawyer representing him and was able to use the admissions by the defense attorney of the 100% loss of use of the eye to justify and support the judge’s awarding the additional 10% add-on to the worker’s disability weeks. That is a good example of how a good lawyer can do for a client.

St. Louis Workers Compensation Center can defend and demand your rights to workmens compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call us for advice and assistance on any work-related injury suffered on the job in St. Louis County, the City of St. Louis, St. Charles County, Jefferson County, Lincoln County, Warren County, Franklin County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

Worker Who Climbed Many Steps For 35 Years Received Disability Compensation For Repetitive Motion Knee Injuries Requiring Surgery, but No Past Medical Bills Because Never Demanded Employer Treat Him

In Tarpeo v. New World Pasta a worker recently convinced a Missouri workers’ compensation administration law judge, as affirmed by Missouri’s Labor & Industrial Relations Commission, that he deserved over 50% permanent partial disability benefits for repetitive motion injuries to both of his knees after working 35 years for the same employer. The evidence presented to the judge showed that he climbed 576 stairs a day and 2,886 stairs a week as essential part of his doing his job working full time over all those years. He started treatment on his own, paying for it out of his insurance and his own pocket, but never really demanded that his employer the pasta manufacturer select his treating doctors and pay for his treatment.

The administrative law judge agreed with the worker’s expert, an orthopedic surgeon, that both of Tarpeo’s knees had suffered serious permanent, mostly work-related disability. He suffered knee cartilage tears (medial meniscus tears) and other major cartilage of both the right and left knees, a torn ACL (anterior cruciate ligament of the left knee and torn MCL (medial collateral ligament) of the right knee, plus some degenerative problems in the knee joints. He required not just surgery to help repair all the cartilage and ligament tears but knee joint replacements as well.

The employee’s expert found testified at a deposition that all these conditions were mostly work-related as traceable back to the worker’s constantly going up and down stairs over his 35-year career with many 12-hour work days, while the insurance-company-selected experts gave their opinions that most of the guy’s problems were due to degenerative arthritis of his knees from the natural process of aging and thus not work-related. The judge believed the worker’s medical expert over the insurance company’s medical expert and awarded that employee both temporary total disability benefits (dating back years to the date he first contracted those injuries through repetitive stair climbing over all his years of employment for the pasta company) and permanent partial disability benefits of at least 50% for each knee (with a “multiplicity load factor of an additional 15% because both knees were involved).

The judge did not award the injured worker the costs for any of his medical treatment on his knees because he never really demanded that his employer pay assume control over his treatment for the knees as work-related injuries the employer was responsible for. It is important for any worker or employee injured on the job hoping to hold his employer legally responsible for his medical bills to notify his employer of what he considers to be his work-related injury as soon as he is told by a doctor that it is. This requirement applies not only to injuries caused by a work-related accident. It also applies to injuries caused by repetitive work motions causing mini-trauma to the body which accumulate over time end up being the main cause of a work-related injury. The employee suffering the repetitive motion trauma-caused injury will normally not know his injury is work-related until a medical doctor tells him so, and it is at that point that the legal obligation falls on the employee to notify the employer that he suffered it as a work-related injury and ask the employer to treat it and choose his treating doctors.

The judge in Tareo’s case found that even after he was told by his doctor that his knee injuries were mostly repetitive-motion caused and thus work-related, this worker sought treatment on his own without ever telling his employer and asking them to take control of treatment and choose his treating doctors so the employer would have to pay for such treatment. Since our Missouri Workers’ Compensation Law allows an employee to seek treatment on his own and pay for it out of his own pocket and Tareo never gave New World Pasta the opportunity to pick his treating physicians, the judge decided that Tareo was not entitled to get any of his past medical bills paid as a workmens compensation benefit by his former employer and its insurer.

However, the St. Louis Workers Compensation administrative law judge did award the employee future medical benefits for treatment any future knee problems. The judge gave the worker’s employer and insurer the right to direct his treatment by choosing the treating doctors for his knee injury problems. He held that if the employee decided once again to choose his own treating doctors without allowing the employer to choose his treating physicians for him, then Tareo would once again be responsible for paying all his medical bills for such treatment with no help from New World Pasta or its workmens compensation insurance company.

Normally repetitive motion work injuries involve the hands, wrists, forearms and elbows, such as carpal tunnel (wrists/hands) syndrome and cubital tunnel (elbow) syndrome. Those are the repetitive work motion injuries Missouri workers compensation judges are most used to and comfortable with granting you workmens compensation benefits on. In every case the worker who seeks workers compensation benefits for a repetitive motion-caused work injury must prove that his injuries are mostly (primarily) work-related. Employers and their insurers more often than not just flatly deny your demand for medical treatment, temporary weekly off-work benefits and permanent disability benefits for such injuries, putting you to the test and forcing you to prove your legal entitlement to such benefits before a judge.

St. Louis Workers Compensation Center can file your claim and help your prove up your right to such benefits. Occasionally you can get workers comp benefits for repetitive motion injuries to parts of the body other than your arms or hand, as Mr. Tareo did I his case, but doing so is especially difficult and will usually require a legal fight and a good expert on the injured employee’s side making the connection. We can help.

St. Louis Workers Compensation Center can defend and demand your rights to workers compensation benefits. We can fight to legally enforce these rights. We can prevent the company from underpaying or cancelling your benefits. Please call us for advice and help on any work-related injury suffered on the job in the City of St. Louis, St. Louis County, St. Charles County, Jefferson County, Lincoln County, Warren County, Franklin County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Often the insurance company denies you some or all benefits, forcing you to fight for them. His attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call today for a free consultation. (See Contact Us).

Employer Not Allowed to Stop Paying Permanent Total Disability Benefits until Former Employee Submitted to New Medical Exam To Show Whether He Could Work Again

In SSM Healthcare v. Hartgrove nurse Hartgrove had injured her back so badly while lifting a patient in 2001 that an administrative law judge awarded her lifetime permanent total disability in 2004. After paying her weekly workers’ compensation disability benefits for her permanent total disability for ten years, at the beginning of 2014 SSM decided that Ms. Hartgrove was doing so much better that she could go back to work and thus should get her weekly benefit payments stopped. SSM notified Hartgrove that if she didn’t submit to a new medical examination by a doctor of their choice they would cut off her permanent disability benefits on their own. She refused to submit to such an exam, so SSM suspended her weekly lifetime benefits that had been awarded her. She challenged that decision by filing a motion to compel continuation of payments with the Missouri Division of Workers’ Compensation.

Missouri’s Labor & Industrial Relations Commission, as affirmed by the Missouri Court of Appeals, found that employer SSM had no authority under the Missouri Workmens Compensation Law to terminate her lifetime benefits on its own. It ruled that if SSM felt that its former employee nurse Hartgrove was somehow able to work once again due to a change in her medical condition entitling them to terminate the lifetime weekly permanent total disability benefits a judge had awarded her ten years earlier, the proper way for them to have done it would have been to file a motion with the Commission to modify an existing award based on a change in her condition.

Thus the employer can not force its former employee who has been receiving lifetime weekly benefits to submit to a new medical examination to help prove it. If the employer wants to stop paying the former employee’s benefits it pretty well better have some solid facts showing enough improvement in their condition to allow them to once again work to earn a living before it files a motion for terminating their benefits.

Even once the employer files a motion to reopen a case based on its belief that the employee had experienced a change in their condition which would allow them to once again work a regular paid job, it does not seem at all certain that the employer could legally force the employee to submit to a reexamination. The reason is that such an examination would be for the purpose of determining whether the former employee could once again work in the open labor market due to a change in their condition rather than for the purpose of giving them further medical treatment.

St. Louis Workers Compensation Center can defend and demand your rights to workmens compensation benefits. They can fight to legally enforce these rights. They can prevent the company from cancelling or underpaying your benefits. Please call us for advice and assistance on any work-related injury suffered on the job in St. Louis County, the City of St. Louis, St. Charles County, Jefferson County, Lincoln County, Warren County, Franklin County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis metropolitan area. Our consultations are completely free of charge. Tom Hyatt will talk to you about your case right away. He will fight as hard he can to enforce all of your rights to Missouri workers compensation benefits. Our attorney’s fee would be a modest percentage of the Missouri workers’ comp disability benefits we get for you. Please call now for a free consultation. (See Contact Us).

Employer Defense of Equal Exposure to Fall Danger Outside of Normal Employment Rejected on Worker’s Fall on Parking Lot Next To Work Building

In the recent case of Scholastic, Inc. v. David Viley the Missouri Court of Appeals for the Western District held that a worker leaving work who fell on a snowy, icy parking lot where his car was parked next to the building the worker worked in was entitled to workers compensation benefits. In the pro-business 2005 amendments to the Missouri Workers Compensation Law Missouri’s legislature limited the circumstances under which an employee leaving work or coming to work could collect workmens compensation benefits for injuries suffered from a fall on the parking lot. These benefits include medical treatment, temporary total (off-work) benefits while unable to work due to his work injuries, and permanent disability money benefits.

Those changes in the Missouri Workers’ Compensation Law provided that: the injured worker was not entitled to any such workman’s compensation benefits unless 1.) the accident that injured him “does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life,” and 2.) the parking lot or land the accident occurs on either on the way to his car from work or on the way from his work back to his car is either owned or controlled by the employer he was injured while working for.

David Viley left work for the day and on the way back to his car fell and injured his knee on a snowy, icy February day on the parking lot adjacent to the building he worked for his employer in on the way back to his car to go home. He filed a workers compensation claim, which was denied by his employer and their workmen’s compensation insurance company. They argued that the employer neither owned nor controlled the parking lot he fell on and that the worker who fell would have been just as exposed to the risk of falling on ice and snow outside of the parking lot in his non-work life. The administrative law judge who heard the case agreed with the employer and their insurer and held that they owed employee Viley no workers compensation benefits at all for the serious cartilage tear in his knee resulting from his fall accident.

Employee Viley fought back and appealed the administrative law judge’s (ALJ’s) denial of benefits to Missouri’s Industrial & Labor Relations Commission that hears such appeals. The Commission overturned the ALJ’s denial of all workmens comp benefits and awarded them to Mr. Viley. The employer and insurer appealed the Commission’s decision to the Western District Missouri Court of Appeals (because the accident occurred in the Western Missouri town of Moberly), which agreed with the decision of the Commission and awarded injured worker Viley all his Missouri workers compensation benefits.

The Court of Appeals ruled in favor of awarding employee Viley all his workman’s compensation benefits based on two legal findings and conclusions. First, the Missouri Court of Appeals found that based on the lease agreement Viley’s employer Scholastic had with its landlord, his employer had the right to exercise some kind of limited control over the parking lot where the fall occurred that injured him.

Second, the court held that the worker’s fall did not come from “a hazard or risk unrelated to the employment to which [Viley] would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” Employer Scholastic had argued that Viley faced an equal risk of falling on a similar parking covered with snow and ice off work anywhere else. However, the court of appeals disagreed. It held that it was not the injured worker’s equal exposure to the general risk of falling on snow and ice outside the workplace that counted but instead the employee’s “specific risk or hazard of slipping on that ice in that particular parking lot.” The Missouri Court of Appeals cited similar cases in Missouri.

The Missouri Court of Appeals has thus made it clear that when it comes to a worker’s equal exposure off the work site to the risks and hazards that caused his accidental fall that resulted in his injuries, the hazard that caused the fall— be it slippery ice or snow, a crack, defect or trip hazard in the parking lot where he fell— have to be hazards from the particular work site he fell on that he would have been exposed to while off work in his nonemployment life.

I think such cases as the one discussed above show that employers and their workmen’s compensation insurance companies will fight tooth and nail to deny any employee Missouri workers compensation benefits any time they can for any reason. That is why you always need to hire a good attorney to file your workers compensation claim and fight to enforce your right to workers compensation benefits.

St. Louis Workers Compensation Center can demand and defend your rights to workers compensation benefits. Then they can fight to legally enforce them. Please call us for advice and assistance on any work-related injury suffered on the job in St. Charles County, in St. Louis County, St. Louis City, Lincoln County, Jefferson County, Franklin County, Warren County, or any other counties in eastern Missouri within 100 miles of the greater St. Louis area. All our consultations are absolutely free. Tom Hyatt will talk to you about your case right away and fight for your rights. Our attorney’s fee would be a modest percentage of the Missouri workmen’s comp disability benefits we get for you. Call now for a free consultation.

Workers for Staffing Agency Held to be Joint Employees of Business Staffing Agency Sends them to Work at.

The Missouri Supreme Court issued an opinion on August 19, 2014 in the case ofTolentino v. Starwood Hotels & Resorts Worldwide, which technically dealt with Missouri’s minimum wage law but might also eventually be applied to workers’ compensation law on the issue of just who is a worker’s employer: the staffing agency, the business the staffing agency contracts with for “labor” to be performed at, or both. The staffing agency paid “its” workers to clean rooms at a hotel owned by the Starwood hotel chain which is part of Sheraton Hotels.

Though this case is about when a company that uses a staffing agency can legally be considered a person’s joint employer for minimum wage enforcement purposes along with the staffing service that contracted out their labor to other companies, the tests that the Missouri Supreme Court used to determine joint employers may in some cases be just as applicable to workers compensation cases in the state of Missouri. This case came out of the Kansas City area. However, its rulings on joint employer liability for minimum wage and overtime payment enforcement could just as well apply to St. Louis workers compensation injuries, St. Charles workers’ compensation injuries, Jefferson County, Lincoln County or Franklin county workmen’s compensation injuries, or for work injuries suffered on the job anywhere else in the greater St. Louis area of eastern Missouri.

Starwood Hotels paid staffing agency Giant Labor Services a $5.00 fee per room cleaned, and then Giant Labor paid its employees $3.50 per room to clean the hotel rooms, illegally deducting from their (mostly non-citizen) workers’ pay for visa fees. A class action lawsuit was filed for Tolentino and other housekeepers against both Giant Labor and Starwood Hotels for minimum wage and failure to pay overtime violations and to pay back the amounts illegally deducted from their paychecks for visa fees.

Starwood Hotels tried to get the suit against them thrown out, claiming that they were not Tolentino’s or the other housekeepers’ joint employer so they were not responsible or liable to either be forced to pay them at minimum wage or to repay the amounts illegally deducted by Giant Labor from their pay. The circuit court threw out both claims against Starwood Hotels, agreeing with Starwood that they could not be held liable for any laws Giant Labor violated in not paying its workers at the Missouri state minimum wage and taking illegal deductions from their pay and failing to pay them for overtime hours worked.

The Missouri Supreme Court reversed the lower court’s decision to throw out workers’ claims for payment of back-owed minimum and overtime wages against Starwood Hotels. It ordered Giant Labor to pay its housekeepers back pay to satisfy minimum wage plus overtime pay requirements. However, Giant Labor was so cash-poor that this money could not be recovered against them after applying certain minimum collection tests, so the only source of funds sufficient to pay back the underpaid wages and overtime would be Starwood Hotels. Staffing service Giant Labor was indicted for criminal violations as well.

The Supreme Court considered a series of factors to determine whether the workers it found had been denied the minimum wage and overtime pay by Giant Labor staffing service could recover the money owed them from Starwood Hotels as their joint employer with Giant Labor. These factors all went to how much direction and control Starwood Hotels exercised over them as joint employees.

The factors were 1.) who had the power to hire and fire the housekeepers? 2.) who supervised and controlled their work schedule and working conditions? 3.) who determined their pay rate and method of payment? and 4.) who maintained their work records? The Court found that Starwood Hotels 1.) had effective power to hire and fire the housekeepers after interviewing them for the job and telling Giant whether they would have them back; 2.) gave them their daily assignments, inspected their housekeeping work, and could make them redo work not properly performed; 3.) made the initial decision to pay housekeepers on a per-room basis and later raised their pay in response to an increase in the minimum wage; and 4.) kept regular records on their performance. The Court held that if Starwood Hotels can be held to be a joint employer of its housekeepers along with Giant Labor staffing service which underpaid their wages, Starwood could be held liable as their joint employer for those underpayments equally with Giant Labor, regardless of whether it was Giant rather than Starwood that committed the wage and hour violations in the first place.

There is no reason why the Missouri Supreme Court’s decision in Tolentino could not be applied where the Missouri state statutory law being enforced is the Missouri Workers Compensation Law rather than the Missouri state minimum wage law. Missouri workers’ compensation law has a special Section 287.040 on work done under contract by contractors or subcontractors, making most employers/hirers of labor done by subcontractors as equally responsible and liable as their subcontractors to pay workers’ compensation benefits to their workers injured on the job.

The recent Tolentino case would hopefully provide yet another way for a workers’ compensation judge or a court to hold a subcontracting company liable as a joint employer for workers’ compensation benefits to workers paid their wages by subcontractor companies such as staffing services. Most of the time staffing services will be fully insured to pay workers compensation benefits to their employees injured on the job, but their insurance rates would be high because of all the extra workers they run through their staffing company’s payroll as their employees so the companies such workers are sent to work at would not have to themselves.

Some such staffing services might come on hard times and decide to drop their workman’s compensation insurance coverage. The only way for the worker injured on the job to get their workers’ compensation benefits paid would be to claim the company they were sent to work at as their joint employer with the staffing service who pays their wages. Often workers hurt on the job with perfectly valid work injuries have nobody to pay their workers compensation benefits because their direct employer had dropped their workmen’s compensation insurance coverage or never got coverage to begin with.

That is why once you have been hurt at the workplace or elsewhere on the job it is important that you stand up for your rights and demand your rights to workers compensation benefits. Tom Hyatt of St. Louis Workers Compensation Center would help you enforce your rights to workmans compensation benefits against the subcontractor who hired you to work for another company at a different location that had contracted with them for your labor. Workers compensation attorney Tom Hyatt would listen to your story and file your claim, demanding and fighting for your denied Missouri workers compensation benefits: medical treatment, temporary lost wage benefits, and eventually permanent disability benefits.

If the company who hired the staffing service decided to retaliate against you by harassing you, demoting you, cutting your hours or pay only after you filed a claim against them, if you could prove they were your joint employer the Tolentino case would give you a better legal argument to sue them for discrimination. Never passively sit by without ever sticking up for your rights. Let Lawyer Tom Hyatt demand they give you all your workers compensation benefits and use the law to enforce your rights to workmen’s comp benefits.

St. Louis Workers Compensation Center can demand your rights to workers compensation benefits for you. Then they can proceed to enforce them. Please call us for advice and assistance on any work-related injury suffered on the job St. Charles County, in St. Louis County, Lincoln County, Warren County, Jefferson County, Franklin County, or any counties in eastern Missouri within 100 miles of the greater St. Louis area. All our consultations are absolutely free. Tom Hyatt will talk to you about your case right away. Our attorney’s fee would be a modest percentage of the Missouri workmen’s comp disability benefits we fight to get for you.

Appeals Court Approves Monthly Payments Converted To Lower Lump Sum Settlement

Missouri’s Western District Court of Appeals reversed an earlier lower appellate decision of the Missouri Industrial & Labor Relations Commission and approved the conversion of a lifetime workers’ compensation settlement for permanent total disability to a lump sum payment to the injured worker that was 49% of the present value of the settlement as stretched out over the worker’s expected lifetime. The Commission had earlier ruled that such a lump sum conversion should not have been allowed, even though the injured worker agreed with the workers’ compensation insurer who made the payments and was represented by an attorney. The worker and his lawyer obviously were well aware that he was agreeing to accept just under half his potential expected lifetime benefits paid in monthly installments in order to get a payment of his benefits in one lump sum paid now. The name of the case is Hinkle v. A.B. Dick. 

It is important to understand that his former employer’s workers compensation insurance company that had been paying him monthly benefits in installments was agreeable to this conversion of his monthly-paid benefits to a final lump sum of just under half his expected lifetime benefits paid monthly. If you have any questions regarding your rights under Missouri’s workers’ compensation in the greater St. Louis area (St. Louis City & St. Louis County, St. Charles County, Jefferson County, Franklin County, Lincoln County and surrounding counties in eastern central Missouri, please feel free to call or e-mail us at St. Louis Workers Compensation Center at any time and we will get back with very soon with answers to your questions. (See Contact Us)