Articles & Updates

Alert: New MO Workers’ Compensation “Accident” Decision

by James B. Kennedy

On July 29, 2014 the Missouri Court of Appeals, Western District, wrote what may be the latest chapter in the saga of the 2005 workers’ compensation amendments involving the definition of “accident” and the application of the “prevailing factor” standard.

Randolph County v. Tammy Moore-Ransdell involved a long-term employee of the Randolph County Assessor’s Office. On February 26, 2008 she was removing a file from the back of a tightly jammed bottom file drawer. While squatting and twisting in an effort to remove the file, she had an onset of severe low back pain. She reported the incident and the employer then sent her to an orthopedic surgeon for complaints of low back and leg pain. However, the employer declined to provide further treatment and denied her formal Claim when it was filed in April, 2008.

Forced then to seek her own treatment, the claimant was referred by her primary care physician to another specialist and was diagnosed with an acute low back strain, degenerative disc disease and intervertebral disc disruption from L3-4 through L5-S1. This eventually led to a three level lumbar spinal fusion in 2010 which the treating surgeon believed was secondary to her February 26, 2008 “work injury”. At trial, she relied on the treating surgeon’s testimony to which the defense responded with the testimony of an examining spinal surgeon. The medical testimony of the claimant’s expert was very convoluted and the case turned on the issue of whether it supported the Labor & Industrial Relations Commission’s award of benefits (which affirmed a similar finding by the Administrative Law Judge).

The employer’s position was that the claimant’s evidence did not establish that she sustained a compensable accident and did not prove that the event of February 26, 2008 was the “prevailing factor” in causing the need for back surgery (and disability) but proved, at most, that the event was only a “triggering or precipitating” factor. Thus, in both respects, her proof did not meet the requirements of Sections 287.020.2 and .020.3 of the Workers’ Compensation Law.

In addressing the employer’s fist point, the Court found that the act of the claimant’s having to squat, bend and twist while struggling to remove a file from a jammed file drawer was a risk that was unique to the claimants’ job and was a risk to which she was not equally exposed in non-employment life, thereby distinguishing the facts from those in the earlier decisions in Miller v. Mo. Highway & Transp. Comm’n (in which the claimant’s knee popped as he was walking across dry level ground) and Johme v. St. John’s Mercy Healthcare (in which the claimant twisted her ankle and fell after making coffee), relying instead on Pope v. Gateway to the West Harley Davidson (in which the claimant fell when he was descending a short flight of stairs while wearing motorcycle boots and carrying his helmet).

In answering the employer’s second point (that the incident was only a triggering or precipitating factor) the Court pointed to the claimant’s expert’s testimony that the incident was the cause of the condition that he had treated, was the “primary factor” that contributed to “the overall condition of her lumbar spine”, was the “prevailing cause” . . . “of the condition that she had when she came to see him”, and was “secondary to the work injury”.

The nineteen page majority decision was followed by a six plus page dissent by the third (of the three) judges. The dissent argued that although the appellate court could not overturn the Commission’s decision on the issue of the relative credibility of the two experts, the court was duty bound to review the record as a whole to determine what the testimony of the claimant’s expert means in the context of the expert’s entire testimony, as opposed to only relying on his use of the “magic words”. In the dissenting judge’s view, that testimony only established that the claimant sustained an acute low back strain (described by her expert as “usually a more short term issue”) superimposed upon pre-existing degenerative disc disease which, even according to the claimant’s expert, was the cause of her pain, degeneration that he admitted was not increased by the work injury (that same expert agreed that the degeneration continued to worsen during the two year hiatus between his last exam in 2008 and when she next returned to him in 2010). The dissenting judge then would have denied compensation since in his view the accident only triggered or precipitated symptoms whereas the need for surgery was the presence of the pre-existing and steadily worsening degenerative spinal condition.

Note: This is the opinion of a three-judge appellate panel and as such is subject to a motion for re-hearing, re-hearing by the court en banc or transfer to the Missouri Supreme Court. Given the strong dissent, further appellate review may occur.

Questions or comments: Contact Jkennedy@evans-dixon.com, call 314-552-4020 or contact any Missouri workers’ compensation attorney in the Firm.

Copyright: Evans & Dixon, L. L. C. 2014.