On December 19, 2017 two Missouri workers’ compensation cases were decided, one by the Missouri Supreme Court, the second by the Western District of the Court of appeals, both of which deserve the attention of any Missouri workers’ compensation stakeholder.
The first case is Ulysses White (Deceased) v. ConAgra
-The employee worked as a machinist.
-On the day in question, June 30, 2012, it was very hot outside and in the plant where White worked.
-He went to work that morning, but at 11:45 a. m. he was found unconscious and died of a cardiovascular event later that day.
-He had a long list of cardiac risk factors, including HBP, cardiac enlargement, evidence of coronary artery disease, and he smoked.
-At trial, his widow presented the testimony of Dr. Stephen Schuman who opined that the employee’s work activities were the prevailing factor in causing his cardiac arrest and death.
-The employee submitted the testimony of Dr. Michael Farrar who stated that the prevailing cause of death was the employee’s underlying severe coronary artery disease and HBP in association with his other risk factors.
-The Administrative Law Judge (“ALJ”) denied compensation, noting that the facts upon which Dr. Schuman’s causation opinion was predicated had not been established.
-The Labor and Industrial Relations Commission (“Commission”) affirmed the denial but in their Final Award determined that the employee’s death at work was an “accident” since it was a “sudden traumatic event” but the Commission agreed that the widow failed to sustain her burden of proof on causation.
-The Western District issued a detailed opinion in which they remanded the matter to the Commission; although that court denied transfer to the Supreme Court, the Supreme Court granted the widow’s Motion to Transfer.
The Supreme Court’s en banc decision:
-On appeal, the Court noted that under Sec. 287.020.3(4) for a cardiovascular disease or myocardial infarction to be compensable there must be showing that: (1) there was an “accident”; (2) there was an “injury”; and, (3) the former was the prevailing factor in causing the latter.
-The Court then discussed, but found as unpersuasive, the widow’s arguments as to requirements (1) and (2) but instead focused on her failure to prove that the accident was the prevailing factor in causing the employee’s injury (death).
-This then is an acknowledgment of the Commission’s power to determine the weight to be given to the testimony of competing experts in a case which involved medical issues which are beyond lay understanding.
-And that every award of compensation must be supported by competent and substantial evidence.
The second case is Robert Casey v. E. J. Cody Co.
-This is the latest round in the litigation of "the case of first impression" involving the application of the 2013 amendments regarding the creation of, and compensation for, the ten now designated “occupational diseases due to toxic exposure” – here, mesothelioma. [See the Alert posted to this website on February 6, 2017 for the details of the Commission’s decision.]
-In short though, the ALJ and the Commission held since Cody Co. was the last employer to expose the employee to asbestos, and since Cody Co. had accepted mesothelioma liability after January 1, 2014, that Cody Co.’s insurer on the date of diagnosis was liable for the enhanced benefit.
-The claimant (widow) appealed the Commission’s failure to award the benefit to the children instead of just to her, the employer appealed the finding of liability, the insurer appealed the award of benefits against it, and both the employer and insurer challenged the validity of the 2013 amendments on constitutional grounds.
-After extensive briefing and oral argument, the Court of Appeals issued a decision which concluded by ordering the case transferred to the Missouri Supreme Court.
-The Court did so since they found that the defendants had properly preserved their constitutional challenges and that these challenges were “real and substantial and not merely colorable”.
-Thus, the exclusive jurisdiction of the Supreme Court to determine the constitutionality of a state statute has been effectively invoked.
-This is not a dispositive decision on any of the underlying issues.
-There was no claim being pursued for the traditional occupational disease benefits (medical, any accrued permanency, the death benefit, and the burial allowance), only the enhanced benefit.
-Thus, regardless of how the Supreme Court eventually rules, many of the extant issue involving the 2013 occupational disease amendments will remain.
-The transfer to the Supreme Court will continue to keep many pending cases involving the mesothelioma enhanced benefit on hold.
Copyright: Evans & Dixon, LLC, 2017