MISSOURI TOP CASES, powered by Huck, Howe & Tobin (updated 1/23/2013)

Martin Klug

These case summaries were written by Martin Klug at Huck, Howe & Tobin.

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Court Declines to Compel Payment of Fund Award. An injured worker with an unpaid award of permanent total benefits could not compel the Fund to fully pay the award by a writ of mandamus, according to the court of appeals. Skirvin v Treasurer of the State of Mo., 2013 Mo App. Lexis 84 (Jan 22, 2013). The court of appeals vacated a writ of mandamus against the State Treasurer ordering payment of an award of permanent and total disability with accrued benefits of $124,000, and transferred the case to the Supreme Court. The Circuit Court of Cole County on June 21, 2012 entering a motion ordering a writ of mandamus to compel the Treasurer to pay a PTD award issued in May 2011. It rejected the Treasurer's motion to join about 200 employees with PTD awards against the Fund, also unpaid since March 2011, to allow the court to determine who should have priority regarding any outstanding liabilities of more than 21 million dollars. Claimant argued since he was first in line he should be paid first.

Click here to read the complete article by Martin Klug.

 Polio Renders Worker Totally Disabled. Claimant fell hundreds of times before in his life, but in 2008 he slipped on a slick floor in his employer's bathroom, lost control of his crutches, and injured his neck. He never returned to work after two neck surgeries. The Commission affirmed an award for permanent total tried solely against the second injury fund and found the 60-year old worker unemployable. Redfern v Autozone, 2013 Mo WCLR Lexis 6 (Jan 10, 2013).

Court Declines To Lower Burden To Prove Wrongful Discrimination Claims. Claimant asserts his boss fired him because he had a worker's compensation case, but he failed to convince a jury of that claim.  He had a disagreement with his employer whether he should take a break to rest and elevate his foot before completing an urgent job assignment.  The case is Templemire v W&W Welding Inc., 2012 Mo App. Lexis 1639 (December 26, 2012).

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No Benefits for Unexplained Fall. An 85-year old employee fell after washing her hands in the employer's bathroom and broke her hip. The Commission denied benefits that claimant established her injury flowed from an identifiable work hazard. Porter v RPCS Inc., 2012 Mo WCLR Lexis 206 (December 7, 2012).

Claimant must establish a risk or hazard associated with her injury, and she failed to meet this burden. The accident did not have a witness, and no one identified any wet or slippery surfaces. The claimant lacked the mental acumen to recall how she fell, if she fell, or even identify her attorney sitting in front of her. The Commission rejected application of a res ipsa argument or various theories that the premises was "unusually treacherous". Claimant's grandson, who lived with the claimant, stated before she had the accident she was always mentally and physically spry.

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Smoking Pot May Support Disability Claim. The commission reversed a denial of benefits and awarded permanent total benefits against the Second Injury Fund and noted that a prior habit of smoking pot daily for twenty years might be regarded as a hindrance or obstacle to employment. Mandina v Glass Group, 2012 Mo WCLR Lexis 196 (Nov. 21, 2012). The Commission found that the ALJ applied the incorrect standard whether claimant's prior medical conditions were an actual obstacle or hindrance to employment. Regarding the drug issue, the decision provides an inconsistent finding whether prior poly-substance abuse was a factor in the award.  The Commission finds substance abuse is a hindrance or obstacle for purposes of Fund liability because a reasonable employer might anticipate a greater liability for someone injured on the job with that history.  In the same paragraph, though, the Commission omits substance abuse in its list of prior conditions.

Click here to read the complete article by Martin Klug.    

Court Dilutes Claimant's Drug Cocktail. The Missouri court of appeals affirmed a decision to dilute a drug cocktail, but the decision came with a twist with a warning about attorney's fees. In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of claimant's multiple ongoing drugs did not flow from the original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in pain and psychiatric medication and sought attorney's fees for an unreasonable defense.

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Claimant's Death Did Not Unravel Settlement Offer. The court of appeals found a 'deal was a deal' and the employer was stuck with its offer to settle a case for $181,434 representing future disability payments, even though claimant died the day the joint motion for commutation of a permanent total award was submitted to the Commission for approval. Nance, dec. v Maxon Electric, WD 74942 (Mo. App. Nov 6, 2012); 2012 Mo. App. Lexis 1401.  The employer attempted to withdraw its motion when claimant died suddenly.  The Commission concluded it did not have statutory authority to approve the proposed settlement.  The court of appeals found the Commission misapplied the law. The court found the commission had limited discretion under §287.390 even in a pre-reform case whether or not to approve a settlement or a joint motion for commutation.  The commission could only reject a settlement unless it finds that the agreement was the result of undue influence or fraud or that the employee did not understand his or her rights and benefits or did not voluntarily agree to accept the terms of the agreement.

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Does Science Matter in Mo Comp? Inaccurate histories and exaggerated symptoms did not stop a claimant from receiving permanent total benefits because his expert was "savvy enough" to sort things out, according to the Commission. Saric v Centaur Building Services, Inc., 2012 Mo WCLR Lexis 168 (Sept. 20, 2012).

Saric was a 61-year old immigrant who did not speak or write English and received an award for permanent and total disability benefits for a 4th claim of back injury, when the Commission reversed a denial of benefits by the administrative law judge who found the claimant untruthful and routinely exaggerated facts. The Commission noted: "employee's experts relied to some degree on employee's presentation and complaints, the administrative law judge discredited the testimony of each expert. We do not believe the testimony of employee's experts is felled by their reliance upon the history, presentation, or complaints of employee. By their curriculum vitae and testimony, the experts convince us they are experienced enough and savvy enough to adequately account for deficiencies in employee's ability to recall and properly recount his medical history. We are also convinced they have the skills to appropriately consider any self-limitation or exaggeration when forming their opinions."

The ultimate issue after Saric is whether science really matters.

Click here to read the complete article by Martin Klug.

Missouri: Court Finds No "Equal Exposure" From Carrying Helmet During Fall at Work. The court of appeals once again revisits the issue when "equal exposure" to the same hazard away from the job limits an employee's ability to obtain worker's compensation for an injury on the employer's property.

Claimant lost his footing on a small staircase on the employer's premises while carrying a helmet, resulting in a fracture to his ankle. He could not identify a defect or hazard related to the staircase or carrying a helmet that caused him to fall. The court of appeals found the case compensable, and affirmed an award by the Commission. Pope v Gateway to the West Harley Davidson, 2012 Mo. App. Lexis 1335 (Mo. App. ED 2012).

Missouri reform redefined "injury" to exclude injuries which "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 non-employment life." Subsequently, many employers argued that a claimant failed to establish he did not have an "equal exposure" away from work. For example, in Niemeyer v Kozeny & McCubbin, 2010 Mo. WCLR Lexis 26, the ALJ harshly criticized the employer's "equal exposure" argument as "ridiculous" that the claimant could have just as easily tripped over an uneven elevator threshold away from the job. The southern district essentially abolished any application of the equal exposure test if the employee established he performed an integral job function (no matter how loosely "integral" was defined), in Pile v Lake Regional Health System, 321 S.W.3d 463 (Mo. App. 2010). The Eastern District rejected the Pile test. Johme v St. Johns Medical Center 2011 Mo. App. Lexis 1412. The Supreme Court addressed the issue and indicated the courts must consider the equal exposure prong. Johme v St. Johns Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) "The assessment of Johme's case necessitated consideration of whether her risk of injury from turning, twisting her ankle, and falling off her shoe was a risk to which she would have been equally exposed in her "normal nonemployment life." In her case, no evidence showed that she was not equally exposed to the cause of her injury-turning, twisting her ankle, or falling off her shoe-while in her workplace making coffee than she would have been when she was outside of her workplace in her "normal nonemployment life."

Pope requires the equal exposure test and concluded that Johme put an end to the two-step Pile test. The "Missouri Supreme Court indicated that the two-step Pile test is no longer the appropriate analysis...."

This provides clear support that the Eastern District considers Pile no longer good law, even though the Supreme Court in Johme did not expressly reverse it or adopt the harsh criticism by Judge Romines that the two-part Pile step was unsupported and illogical. The employer in Pope had abandoned its Pile argument after the Johme case was decided.

Pope was walking on an uneven surface and satisfied a work hazard (carrying a helmet) produced the consequence of falling, according to the Commission. The court of appeals deferred to this finding of fact. A claimant must present evidence of a proof a hazard that is a rational consequence of a work injury. Bivins v St. Johns Regional Health, 272 S.W.3d 446 (Mo. App. 2008). Bivins was denied benefits while walking on an even surface and there was conflicting evidence whether anything caused her foot to stick. The Commission has noted that carrying objects while descending a porch makes an employee more prone to mishap or misstep. Humphreys v Fort Zumwalt, 2009 MO WCLR Lexis 35. In both Humphreys and Pope, the Commission found carrying something caused the hazard of an injury, even though both claimants were unable to identify the object caused or contributed to falling. Pope v Gateway to the West Harley Davidson, 2012 Mo WCLR Lexis 15.

The more important aspect of Pope is how the court applied the equal exposure analysis. Pope affirmed an award of benefits because there was no evidence that claimant had equal exposure to the specific facts of carrying a helmet down steps. "The record contains no evidence that Pope normally carried his motorcycle helmet while descending stairs in his normal, non-employment life. Even if Pope were an avid motorcyclist, we will not presume facts not found in the record." Evidence that claimant carried a helmet and walked on steps away from the job was not enough to show equal exposure without claimant admitting he carried a helmet while walked down steps at the same time.

Pope further appears to depart from Johme v St. Johns Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) regarding which party has the burden of proof on this issue. Johme denied benefits and treated equal exposure as part of the prima facie case: there was "no evidence showed that she was not equally exposed to the cause of her injury-turning, twisting her ankle, or falling off her shoe-while in her workplace making coffee than she would have been when she was outside of her workplace in her "normal non-employment life." Pope, on the other hand, affirms an award of benefits because the employer did not show equal exposure of the identical factual circumstances of the accident. The very factual intensive analysis in Pope can easily produce absurd results which thwarts any legislative intent to narrow the entitlement to worker's compensation benefits.

Supreme Court to Decide if Second Injury Fund Must Pay for Minor Prior Medical Conditions. An employee injured in Missouri may be able to claim additional benefits from the Second Injury Fund (SIF) if the employee had a pre-existing disability that reaches a statutory minimum level of disability.  The Commission claims in several recent cases that it is a "common misperception" that each separate prior disability must satisfy the threshold and that the prior disabilities could not be combined.  Abt v Mississippi Lime, 2012 Mo WCLR Lexis 44; Buhlinger v Sherrell Construction, Inc., 2011 Mo WCLR Lexis 241; Calvert v Noranda Aluminum, 2011 MO WCLR Lexis 242; Perkins v Mo Dept of Corrections, 2011 MO WCLR Lexis 255.

The issue will now go to the Missouri Supreme Court.

The Western and Eastern Districts have now questioned the Commission's recent expansive statutory interpretation that allows a claimant to pursue money against the Second Injury Fund by stacking prior disabilities rather than requiring each prior disability satisfy certain statutory minimum levels.  If the Supreme Court supports the more expansive rule the decision could substantially increase liability for the 29,000 outstanding Second Injury Fund cases.

The Western District noted that it "is difficult to reconcile the Commission's interpretation of § 287.220.1 with the plain and ordinary language found therein."  The Second Injury Fund contends that each pre-existing condition must separately reach the 15% threshold (or 12 ½% BAW) and the Commission cannot combine disability for different body parts or conditions. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093 (Sept 4, 2012).  The Commission in Witte concluded that claimant had 10% of the body as a whole referable to diabetes, 10% of the body as a whole referable to employee's gastrointestinal condition, 10% of the body as a whole referable to his psychiatric problems, 10% of the right leg at due to a childhood injury resulting in uneven leg length, and 5% of the body as a whole referable to the lumbar spine. Witte v Sho-Me Live Stock Corp., 2011 Mo WCLR Lexis 240.  None of these prior disabilities would support a claim for benefits if each condition was considered separately.

The Eastern District  reached the same conclusion in Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098  (Sept. 11, 2012).  In Salviccio the ALJ denied benefits but the Commission reversed the denial and combined the sum of pre-existing disabilities from a hernia and a finger injury to satisfy the statutory requirement.  Salviccio v Western Supplier Co., 2011 Mo WCLR Lexis 239 (Dec. 8, 2011).

The controversy arises at a curious time as the Fund is not paying many awards and settlements due to insolvency.  Second Injury Fund Teetering Injured Workers are Owed $14 Million , and a Business Group Estimates Liability of $1 Billion, Feb. 16, 2012, St. Louis Post Dispatch.

Court Tightens Burden of Missouri Employer to Invoke Safety Penalty. Claimant carried a 100-pound roll of composite on to a roof, he hurt his back and became totally disabled. The Western District court of appeals reversed the 50% safety penalty on his benefits applied by the administrative law judge and the Commission and remanded the case for further findings. Carver v Delta Innovative Services, 2012 Mo. App. Lexis 1123 (Sept. 11, 2012).

Missouri provides a 25-50% penalty in §287.120 for the failure to use safety devices or the failure to obey a reasonable rule adopted by the employer for the safety of the employees. The administrative law judge found claimant knew he was going to violate a three-point safety rule, and he made a conscious decision to violate the rule and invoked the maximum penalty. The court remanded the case for the commission to make express findings whether the employer made a reasonable effort to cause his employees the follow the rule.

The court noted that although causation was "not raised by the parties," it felt the Commission should make further findings on the existing record whether violation of the safety rule caused the injury. The court concluded that a safety penalty did not automatically apply when a claimant sustained injury while violating a safety rule, because the affirmative defense only applied with additional express findings that violating the rule caused the injury. "It is not clear that this is the sort of injury that the three-point rule was adopted to prevent, and whether Carver's violation of the three-point rule bore a sufficient causal connection to his injury."

The same judge affirmed a safety penalty a year earlier in Thompson v ICI Am Holding, 347 S.W.3d 624 (Mo. App. 2011) which invoked a 37 ½% penalty on all benefits because claimant failed to de-energize equipment, and noted the safety penalty applied if violation was a "one of the efficient causes thereof" even if other concurrent causes existed. In Thompson the claimant asserted the injury arose because a replacement belt was installed at full tension rather than flowing from the failure to lock-out all energy sources.

Wrongful Death Suit Allowed for Teen Killed on Job. An 18-year old girl was working as a cashier for Dollar General in Campbell, Missouri when her boyfriend entered the store with a rifle, he fatally shot her and then killed himself.  The employer claimed her accident arose out of her employment because she was assaulted on the job and the girl's parents could not sue the store for wrongful death.

The court of appeals reversed a summary judgment in favor of the employer but affirmed a summary judgment in favor of her supervisor.  The court noted the summary judgment was a "drastic" remedy.  An assault might arise at work and preclude a wrongful death claim based on a defense of exclusive jurisdiction.  The court made a de novo finding that this case was an exception because the assault was purely personal.  Claimant showed up at work with a black eye, her boyfriend first appeared at the store and kicked down a door, and he appeared again with a rifle. The employer's stipulation in its motion for summary judgment that the claim arose out of and in the course of her employment did not preclude a finding to deny a summary judgment because the statement was a conclusion of law and not an uncontroverted fact.   Flowers v City of Campbell and Dollar General, 2012 Mo. App. Lexis 1062 (August 31, 2012).

Commission Pierces Corporate Veil for LLC Owners. Want to pierce the corporate veil? Go ahead, according to the Labor and Industrial Relations Commission in a 2-0 decision which found uninsured Missouri business owners operating out of their home personally liable for more than $72,000 for a claimant who fell from a ladder in 2008 while installing duct work.

In Guinnip v. Bannister Electric, 2012 MO WCLR Lexis 149, issued July 27, 2012, the defendants operated several HVAC businesses out of their home and did not have worker's compensation insurance. The claimant established control to show he was an employee and not an independent contractor because he performed several jobs, he was paid an hourly rate, and closely supervised and told what to do. The owners of the LLC dominated the business practices, commingled accounts to pay personal expenses, and did not acquire worker's compensation insurance although having one employee performing construction made them subject to the Act. The LLC argued asserted that claimant was an independent contractor.

The LLC did not have an attorney at the 2011 hearing and had been granted a previous continuance to obtain one. The LLC owner Mr. Liles attempted to file an application for review on behalf of his wife as the co-owner and the appeal was rejected because he was not permitted to file an appeal on her behalf without engaging in the unauthorized practice of law. The LLC did not file any brief with the commission.

"The circumstances under which Missouri courts will pierce the corporate veil and hold the corporation's owner liable for the corporation's debt are narrow. Patrick v Koepke Const., Inc. v. Paletta, 118 S.W.3d 611. A court may pierce the corporate veil or disregard the separate corporate entity if the separateness is used a device to defraud a creditor. Sansone v. Moseley, 912 S.W.2d 666 (Mo. App. 1995).

A Missouri court will disregard the corporate entity and hold the corporate owners liable if the following can be shown: (1) control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practices in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) such control must have been used by the corporation to commit fraud or wrong, to perpetrate the violation of statutory or other positive legal duty, or dishonest and unjust act in contravention of claimant's rights; and (3) the control and breach of duty must proximately cause the injury or unjust loss complained of. Collett v. American National Stores, Inc. 708 S.W.2d 273 (Mo. App. 1986)." Cited in Lowe v. Kelly Cattle Co., 2012 MO WCLR Lexis 123, June 19, 2012. The Commission unanimously affirmed a claim rejecting an attempt to piece the corporate veil in Lowe. The Commission affirmed without comment a finding by a different administrative law judge: "There is no provision in the Missouri Workers' Compensation Law that permits an employee to pierce the corporate veil in order to hold an individual liable as an employer."

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