State Worker’s Fall on Parking Lot While on Break was Compensable as Work Injury Because Employer Controlled Lot as Part of its Extended Premises

The case of Beem v. Missouri Department of Social Services was decided by the Western District Missouri Court of Appeals on October 13, 2015.

The worker in this case, Gwendolyn Beem, was working for the Missouri state Department of Social Services (DSS) when she was injured by slipping and falling on an ice-covered parking lot while she was crossing the lot during a work break to get to her car. Her intention was to leave the DSS’s premises where she worked to get into her car and go home to let her dog out.

Until the 2005 amendments to Missouri Workers Compensation Law the law an employee’s fall on a parking lot adjacent to or very near to their workplace would have allowed them to get workers’ compensation benefits, including medical treatment, temporary wage loss substitute pay benefits and permanent disability money benefits. Unfortunately that all changed when the Missouri legislature in major 2005 revisions to the Law tried its best to limit the circumstances under which an employee on the way to their car who falls on a parking lot next to or near their workplace can be entitled to workers compensation benefits.

To get benefits that worker now would have to show 1.) that their fall occurred on premises “owned or controlled by the employer” and “so appropriated by the employer or…so situate[d], designed and used by the employer and his employees incidental to their work as to make them, for all practical intents and purposes, a part and parcel of the employer’s premises and operation,” and 2.) that their fall occurred on “that portion of such premises [which] is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workers to get to and depart from their places of labor and is being used for such purpose at the time of injury.” I am sorry to have to lay all that legalese mumbo-jumbo on you, but that is what your lawyer would have to prove to a workmen’s comp judge in order to get you any benefits (medical treatment, lost pay or permanent disability benefits) at all from your employer and their workmen’s compensation insurance company.

The sad reality is that employers will almost always try to get over and around having to pay your benefits by claiming that the parking lot you fell and injured yourself on either was not controlled and used by them as part of their work or was not on the usual pathway they had ordered or encouraged their employees to use to get across the parking lot to their cars. If you can’t prove them wrong you get no benefits at all. (I could help you prove them wrong in your own case where the company denies you benefits if the facts are on your side!)

The state of Missouri acted just like any other employer would, fought Ms. Beem and denied her getting any workers comp benefits at all, claiming they didn’t control the parking lot, that the lot wasn’t any part of their operations, and that where Ms. Beem slipped, fell and was injured was not on the usual path to the state workers’ cars that they ordered or encouraged DSS workers to use. The state of Missouri made every argument it could and used every trick in the book to deny its own loyal employee any workers comp benefits at all: no medical treatment, no temporary off-work wage loss substitution for its worker to survive on while getting treatment.

The question the workers compensation administrative law judge who heard the case had to answer was whether the Department of Social Services (DSS) premises extended to the parking lot its employee fell on. The judge looked at DSS’s lease on the parking lot. This lease gave DSS a certain number of parking spaces near to the building DSS worked out of and DSS agreed in the lease to “direct and pay for removal of snow and ice from the sidewalks and parking area” plus to provide and pay for general lawn care.

The lease provision making control by and the responsibility of DSS to maintain the parking lot convinced the judge hearing the case to find that DSS exercised enough control over the lot where Ms. Beem fell and the path she took to get there to make her fall on it a work-related injury. The Missouri Labor Commission that heard the state’s appeal of the judge’s decision agreed with the judge, and when the state appealed the decision finding work-related compensability of her fall on the lot to the Missouri Court of Appeals, the Court of Appeals agree with the judge and the Commission and found for the employee, Ms. Beem. Even though Beem was on break when she fell they all agreed that had she not been at work and then left work to go to her car when she fell on the lot, she would never have been injured in the first place.

I think you can see from my above description of this recently decided case that whether a worker hurt on the job by falling on a parking lot outside of his workplace gets his injuries covered by his employer’s workers compensation insurance depends totally on whether the legal system which hears his claim for compensation, once his employer denies him benefits, finds his employer sufficiently controlled the lot where he fell and the pathway he took through the lot to get to his car. If that were to happen to you, your employer would make you fight to get any workers compensation benefits.

Trying to fight your employer and their workmens comp insurance to get them to give you medical treatment for your injuries, temporary off-work wage loss benefits, and permanent disability benefit money would be next to impossible without getting  hard-fighting attorney to fight for you against the company, its insurance claim adjuster and the lawyers it will hire to fight you tooth and nail to deny you any benefits.

This is true of many other types of workers compensation claims as well. You have to fight them in the legal system or you get no treatment benefits and no money benefits. Employers and their workmen’s comp insurance will deny you all benefits and make you fight for any kind of treatment, lost wages and permanent disability from your accident unless you go out and hire a lawyer to fight for you. You might win or you might lose in the end, but without a hard-fighting attorney you will get no decent benefits for sure.

Another reason a worker injured on the job in a work accident really should consult and hire a lawyer is that even when the company finally sends you out to a doctor for treatment, the doctors they choose for treatment will do everything they can to deny or minimize the worker’s injuries. They will go out of their way to blame any work injuries on pre-existing degeneration (like arthritis) or previous injuries they can find. A good, experienced hard-fighting workers compensation attorney can gather up all the medical treatment records and send the injured worker out for an evaluation by experts who will work in the employee’s interests and enable the injured worker to prove his case to a workmen’s compensation judge. The legal system often makes you work and fight hard just to get any benefits at all.

St. Louis Workers Compensation Center can defend your rights to workers compensation benefits and demand treatment and money benefits. They can help you fight to enforce your legal rights to benefits. They can fight to keep 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).

Squatting for Prolonged Periods Can Be Considered a Work Hazard Allowing Benefits for Injured Worker

The case of Cotner v. Southern Personnel Management, Inc. was decided by the Missouri Labor and Industrial Relations Commission on August 20, 2015.

The worker in this case, Warren Cotner, was a shuttle bus driver for his employer shuttling prospective clients to their time share management building. On the date of the accident he got out of the bus and walked to the front left side of it to determine whether the front air conditioning unit was properly working. He had already told the mechanic about the compressor problem. While squatting over the unit to listen to the compressor to see whether it was grinding or making some type of grinding or malfunctioning noise, Cotner bent forward and squatted, putting one leg behind him as he did so. While he tried to stand back Cotner stepped backwards and his foot stepped on a pebble or otherwise got stuck on the pavement, causing him to stumble backward and fall down to the ground, landing on the pavement.

The worker suffered injuries to his right hip (a hip fracture), neck and right shoulder, was brought to the emergency room, and underwent surgery for repair of the right hip fracture, with a screw being inserted. Mr. Cotner’s medical expert his attorney sent him to examined him and concluded that his slip and fall incident was the main factor causing his injuries, requiring his hip surgery, and leaving him with permanent disability and likely requiring future medical treatment.

However, as usually happens, his employer’s workers compensation insurance sent Mr. Cotner to their own medical expert. After interviewing and examining the worker company-selected Dr. Lennard wrote a medical report concluding that the fall caused Cotner an upper spine (cervical) strain and right shoulder strain, blaming 20% of his strain on pre-existing, pre-accident spinal fusion surgeries. He also found that the employee had injured his right shoulder in the fall, but attributed one-half of all the problems in his shoulder to a pre-existing right shoulder condition.

When a company doctor medical expert blames any part of the permanent disability from a work accident on pre-existing medical condition— whether from a previous accident and injury or pre-existing arthritis degeneration of the same part(s) of the body injured in the work accident— that allows the employer and its workmen’s compensation insurer to subtract that amount of disability from the worker’s workmen’s comp benefit. It means that the employee hurt on the job in a work injury does not get 100% of his disability benefits from the accidental injury.

The administrative law judge who heard the case ruled in favor of employee Cotner, finding that he suffered injuries from his fall accident to his hip, neck and right shoulder not just while he was at work but because he was at work. Getting hurt while on the job is not enough to be entitled to workers compensation benefits, either medical treatment, temporary off-work wage loss benefits, or permanent disability benefits. The judge, after hearing all the testimony from both the worker’s and the company’s experts and the worker’s vocational expert saying he could no longer work, awarded the worker permanent total disability, without subtracting anything for pre-existing disability.

This case is a good example of why a worker injured on the job needs a good lawyer to represent him. Many lower and middle level supervisors refuse to report work-related injuries reported to them by employees under their supervision to higher-ups in the company or delay doing it. Then when the injured worker gets tired of having their work injury ignored and never gets sent to a doctor by the company, when the employee then goes over the heads of his direct supervisors to company top managers or human resources, they will often claim that he failed to report his work accident and injury in time to the company, since the supervisors claimed he never did.

Another reason a worker injured on the job in a work accident really should consult and hire a lawyer is that even when the company finally sends the employee out to a doctor for treatment, the doctors they choose for treatment will do everything they can to deny or minimize the worker’s injuries and will go out of their way to blame any work injuries on pre-existing degeneration (like arthritis) or previous injuries. A good, experienced hard-fighting workers’ compensation attorney can gather up all the medical treatment records and send the injured worker out for an evaluation by experts who will work in the employee’s interests and enable the injured worker to prove his case to a workmen’s compensation judge.

St. Louis Workers Compensation Center can defend your rights to workers compensation benefits and demand treatment and money benefits. They can help you fight to enforce your legal rights to benefits. They can fight to keep 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, Warren County, Lincoln County, Jefferson County, Franklin County, St. Charles 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).

Workers Compensation Judges and Labor Commission Retain Jurisdiction to Award Future Medical Benefits Previously Allowed by Settlement or After Trial

The case of State ex rel. ISP Minerals v. Labor & Industrial Relations Commission was decided by the full Missouri Supreme Court n July 21, 2015. There is a general legal rule that once a Missouri workers compensation administrative law judge or the appeal board/Missouri Labor and Industrial Relations Commission approves a settlement or rules on a contested case decided after a trial, after a certain deadline for filing a appeal has passed the judge or Commission loses all jurisdiction over any aspect of the settlement agreement or legal decision.

An injured worker named Alcorn settled his claim with his employer, ISP Minerals, for a lump sum for permanent partial disability for a pulmonary (lung) condition contracted from exposure to a chemical dust from employer’s mining operation. The settlement agreement, officially approved by an administrative law judge of the Missouri Division of Workers Compensation, contained a provision granting Alcorn future medical treatment if needed for that pulmonary condition “to leave future related pulmonary med. care open” and authorized such medical care for his COPD and obstructed airways through a particular lung doctor in St. Louis.

Some years later the lung doctor whom the settlement authorized to recommend perform such future medical treatment prescribed Alcorn certain inhalers for his work-related lung condition. ISP Minerals filed with the court of appeals for what is called a “writ of prohibition”. Writs of prohibition are a type of court order a party can get when they believe that a judge has acted in excess of his jurisdiction and wants to get a higher appellate court to issue a ruling (writ) “prohibiting” (barring) the judge from ordering it.

ISP Minerals argued to the appeals court that no administrative law judge had the power to order future medical benefits, even if provided for in a judge-approved settlement or judge’s decision after a trial on a case, since the judge’s power to order anything had run out after no appeal to the judge’s approval of the settlement was filed. They argued that if Alcorn did not like it and wanted future medical benefits ordered, he had file a lawsuit to convince a regular circuit court judge to award the future medical, but that the administrative law judge had lost jurisdiction after the settlement to order even future medical treatment ISP had agreed to in the settlement!

Alcorn’s attorney argued to the Court of Appeals that unless an administrative law judge retained jurisdiction (after approval of the settlement or handing down of a decision after a trial) to order an employer and its insurance company to pay the very future medical benefits provided for in the settlement or judge’s decision, how could the injured worker’s rights to such future medical benefits ever be enforced in case the company refused to pay such benefits other than by going through the hassle of filing a court lawsuit.

Not surprisingly, Alcorn’s lawyers won the argument. Basically, the Missouri Supreme Court held that it was not going to allow an employer such as ISP Minerals first to agree to the injured worker’s getting certain future medical benefits, then after approval of the settlement not be allowed to order such agreed to benefits because the judge had lost all jurisdiction over every aspect of the case after approving the settlement.

Other cases had barred the administrative law judge from changing a settlement or issuing a new decision once 30 days had passed from the date the settlement was approved or the judge issued his decision on a contested case. Judges would be barred from changing a settlement or a decision after a certain number of days had passed without an appeal being filed. However, Alcorn’s case was totally different from that because Alcorn was not trying to get a workers compensation to change a settlement or decision after the deadline appeal had passed.

He was trying to get a judge to enforce the injured worker’s established right to future workmen’s compensation benefits that had intentionally been left open to be applied for by the injured worker after the settlement was approved or decision issued. Such benefits were meant to be applied for only after the settlement had been approved. This case just goes to show how far some employer or insurance company’s are willing to go to put up legal roadblocks to injured workers simply trying to enforce their right to benefits.

St. Louis Workers Compensation Center can defend and demand your rights to workers compensation benefits. They can fight to legally enforce your rights. They can prevent the company from canceling or underpaying your benefits. Please call Tom Hyatt for advice and assistance on any work-related injury suffered on the job in St. Louis County, Jefferson County, St. Louis City, 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). We are here to help you fight for your rightful benefits.

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).