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Articles & Updates

Three MO WC Appellate Decisions in Two Days, and Two of Those Are Defendant Friendly, but the Third, Not So Much

by James B. Kennedy

1) It’s not often that you see the Missouri Supreme Court accepting an appeal in a workers’ compensation case where credibility was the major issue, but they did so in Annayeva v. SAB of the TSD of the City of St. Louis (“Bd. of Ed.”), decided on March 17, 2020.

The employee slipped and fell on a linoleum floor, a fall that she could not explain at the time, but which she later blamed on dust, dirt, ice, and moisture on the floor. She claimed injuries to nine body parts and an equal number of bodily functions. She had extensive treatment and at trial had favorable testimony from several physicians. The Bd. of Ed. had multiple favorable experts also. The ALJ denied compensation due to a lack of credibility concerning her injuries and their claimed effects which “verge on the point of malingering”. The Commission affirmed the denial, but in a supplemental opinion held that the claimant failed to prove that the fall arose out of her employment. The Court of Appeals reversed, but then the case was transferred to the Supreme Court.

The Supreme Court reversed since the claimant’s later testimony concerning the condition of the floor was found by the Commission to lack credibility, a finding binding upon the Court, and without it, there was insufficient proof that the fall was the result of a risk related to her employment (citing Miller v. MHTC and Johme v..St. John’s Mercy M. C., two of the early “accident” cases decided, and denied, under the 2005 amendments). In a footnote, the Court once again discussed the importance of the distinction between the burden of production and the burden of persuasion. Here then, the claimant introduced enough evidence to support a recovery, but the evidence lacked the credibility necessary to persuade the Commission to find in her favor.

Takeaway: It was encouraging to see the Supreme Court confirm the conclusiveness of the Commission’s fact finding and credibility determinations.

2) On March 16, 2020 the Court of Appeals, Southern District, in Ritch v. Professional Transportation, decided an appeal involving a claimant’s attempt to reopen a settled case based upon an allegation of a change in condition. On April 17, 2017 the employee had settled all issues in the case, except for future medical, which was left open. In the settlement, he received the equivalent of 31% of the body related to his spine. Then on August 7, 2019 he filed a petition with the Commission to reopen under RSMO. Section 287.470, the section which allows the Commission to review and change an award. The Commission dismissed his petition and he appealed.

The Court of Appeals ruled that the claimant’s argument, that the reference to “any award” in 287.470 includes compromise settlements, had no merit. In doing so, they quoted the provisions of RSM0. Section 287.390, the compromise settlement provision, which makes it clear that absent undue influence or fraud, a compromise settlement is final. The fact that medical was left open doesn’t affect the finality of the settlement of the permanent partial disability issue.

Takeaway: Imagine what would have happened if the Court had ruled in the claimant’s favor! As it is, even awards are rarely reviewed and changed since the Commission sets the bar very high, as well they should. Finality is a worthy goal.

3) In Hicks v. Mo. Dept. of Corrections, decided on March 17, 2020, the Court of Appeals, Eastern District, dealt with the issue of the termination of temporary disability where the employee was discharged for post-injury misconduct. While in training to become a corrections officer late in 2013, Hicks injured his left arm and shoulder. Then followed a complicated medical history of his going to several shoulder specialists, having multiple shoulder surgeries, and an eventual discharge to return to full duty in early 2016. While he was off work earlier in the treatment process, the employer discharged him for failing to periodically report his condition and his absences, a failure that the employer felt was post-injury misconduct. When the claimant later pursued past accrued TTD after his discharge, the employer claimed that he could not do so under Section 287.170.4, the section which provides that the employer is not liable for TTD where the employee is discharged for post-injury misconduct. The ALJ awarded TTD, the Commission adopted the ALJ’s fact finding, but held that his post-injury misconduct defeated his claim for TTD.

On appeal, the Eastern District held that although the employer may have been justified in discharging the claimant for misconduct, he had nonetheless been unable to work due to his injury and the statute exempts misconduct in the form of absences from the workplace due to an injury, unless the employee was capable of working with restrictions – which Hicks was not during the period at issue.

Takeaway: It’s frustrating for an employer to have to deal with an employee who doesn’t keep in touch during a period of temporary disability, particularly if the employer is considering making a job available which the employee might be cleared to perform by the treating physician, or just wants to keep the employee on the employers’ radar. However, the Doctor’s opinions as to the employee’s work capabilities will control, and strict statutory interpretation does support the Court’s ruling.

 

Questions or Comments? Contact Jim Kennedy: 314-552-4030 | jkennedy@evans-dixon.com

Copyright: Evans & Dixon, LLC 2020

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