missouri workers' compensation

Workers’ Compensation

Reference Guide

Missouri

MISSOURI WORKERS’ COMPENSATION

I. JURISDICTION (RSMo § 287.110.2)

A. Act will apply where:

1. Injuries received and occupational diseases contracted in Missouri; or

2. Contract of employment made in Missouri, unless contract otherwise

provides; or

3. Employee’s employment was principally localized in Missouri for thirteen

calendar weeks prior to injury.

II. ACCIDENTS

A. Traumatic (RSMo § 287.020)

1. An unexpected traumatic event or unusual strain identifiable by time and

place of occurrence and producing at the time objective symptoms of an

injury caused by a specific event during a single work shift.

2. An "injury" is defined to be an injury which has arisen out of and in the

course of employment. An injury by accident is compensable only if the

accident was the prevailing factor in causing both the resulting medical

condition and disability.

3. "The prevailing factor" is defined to be the primary factor, in relation to any

other factor, causing both the resulting medical condition and disability.

4. An injury shall be deemed to arise out of and in the course of the

employment only if:

a. It is reasonably apparent, upon consideration of all the circumstances, that

the accident is the prevailing factor in causing the injury; and

b. It 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 non-employment life.

c. An injury resulting directly or indirectly from idiopathic causes is not

compensable.

d. A cardiovascular, pulmonary, respiratory, or other disease, or

cerebrovascular accident or myocardial infarction suffered by a worker is an

injury only if the accident is the prevailing factor in causing the resulting

medical condition.

5. An injury is not compensable because work was a triggering or precipitating

factor.

B. Repetitive Injuries/Occupational Disease (RSMo § 287.067)

1. Occupational disease is an identifiable disease arising with or without

human fault out of and in the course of the employment.

2. Ordinary diseases of life to which the general public is exposed outside of

the employment shall not be compensable, except where the diseases

follow as an incident of an occupational disease as defined in this section.

3. The disease need not to have been foreseen or expected but after its

contraction it must appear to have had its origin in a risk connected with the

employment and to have flowed from that source as a rational

consequence.

4. With regard to occupational disease due to repetitive motion, if the exposure

to the repetitive motion which is found to be the cause of the injury is for a

period of less than three months, and the evidence demonstrates that the

exposure to the repetitive motion with the immediate prior employer was the

prevailing factor in causing the injury, the prior employer shall be liable for

such occupational disease.

5. The employer liable for occupational disease is “the employer in whose

employment the employee was last exposed to the hazard of the

occupational disease prior to evidence of disability.”

a. For repetitive motion claims, if exposure is for less than three months

and exposure with prior employer is prevailing factor in causing the

injury, prior employer is liable.

b. “Evidence of disability” is a term of art. It is often felt to refer to an impact

on an Employee’s earning capacity.

III. NOTICE (RSMo § 287.420)

A. 30 days to report traumatic accident to Employer.

B. In repetitive trauma/occupational diseases, Employee has 30 days from the date

a causal connection is made between the occupational disease and the

employment to report the occupational disease to the employer.

C. The notice must be written and include the time, place and nature of the injury, and

the name and address of the person injured.

D. Employee can overcome a notice defense by providing Employer was not

prejudiced by the failure to provide timely notice.

E. If Employee can show that Employer had actual notice of the injury, even if the

notice was not provided by Employee, the written notice defense may fail.

IV. REPORT OF INJURY (RSMo § 287.380)

A. A Report of Injury should be filed for all claims that result in lost time or require

medical aid other than immediate first aid.

B. Advise all employers to complete a Report of Injury as soon as possible and file

with the Division of Workers’ Compensation in Jefferson City, Missouri.

C. Failure to file Report of Injury within 30 days of accident results in extension

of statute of limitations from two to three years from the date of accident or

date of last benefits paid, whichever is later.

D. File Report of Injury regardless of whether a claim is being denied. Filing is not an

admission of compensability.

E. Civil and criminal penalties possible for failure to file the Report of Injury.

V. CLAIM FOR COMPENSATION (RSMo § 287.430)

A. Employee has two years from the date of accident or the last date payment was

made for benefits to file a timely Claim for Compensation.

B. If Employer did not file a Report of Injury within 30 days of accident, Employee has

three years from the date of accident or the last date payment was made for

benefits to file a timely Claim for Compensation.

C. On occupational disease claims, Employee has 2 years from the date at which a

causal connection is made between the occupational disease and the occupational

exposure to file a Claim for Compensation (3 years if Report of Injury was not filed

timely).

VI. ANSWER TO CLAIM FOR COMPENSATION

A. If you receive a Claim for Compensation, assign the claim to counsel ASAP.

B. Answer must be filed within 30 days of notice from Division of Workers’

Compensation.

C. Failure to file timely answer results in acceptance of facts in claim, but not

legal conclusions.

D. Continue investigation and attempt settlement if appropriate.

VII. MEDICAL TREATMENT (RSMo § 287.140)

A. Employer provides treatment and selects providers.

B. Change of doctor only when present treatment results in a threat of death or

serious injury.

C. Mileage is only paid when the exam or treatment is outside of the local metropolitan

area from the employee’s principal place of employment.

D. Vocational Rehabilitation

1. Never mandatory.

2. Used to take a potential permanent total to another vocation.

3. If requested by Employer, Employee must submit to “appropriate vocational

testing” and a “vocational rehabilitation assessment.”

4. 50 percent reduction in benefits if Employee fails to cooperate with

vocational rehabilitation.

VIII. AVERAGE WEEKLY WAGE (RSMo § 287.250)

A. Need thirteen weeks of wage history in most cases.

B. Add gross amount of earnings and divide by number of weeks worked.

1. The denominator is reduced by one week for each five full work days missed

during the thirteen weeks prior to the date of accident.

2. Compensation rate = 2/3 average weekly wage up to maximum.

3. Minors: consider increased earning power until age 21.

C. Part-timers: for permanent partial disability only, use thirty hour rule (30 hours x

base rate). The thirty hour rule does not apply to temporary total disability.

D. Multiple employments: base average weekly wage on wages of Employer where

accident occurred only. Do not include wages of other employers.

E. New employees: if employed less than two weeks, use “same or similar” full-time

employee wages, or agreed upon hourly rate multiplied by agreed-upon hours per

week.

F. Gratuity or tips are included in the average weekly wage to the extent they are

claimed as income.

G. EXAMPLES:

1. Full-Time Employee

a. Employee earned $9,600 in gross earnings for 13 weeks prior to injury.

b. Employee missed five days of work during the 13 weeks prior to date of

injury.

c. Average weekly wage is $800.00 ($9,600.00/12)

2. Part-Time Employee

a. $10 per hour

b. Use 30 hour rule (30 hours X base rate)

c. Average weekly wage is $300 (30 X $10.00)

IX. DISABILITY BENEFITS

A. Temporary Total Disability (RSMo § 287.170)

1. Compensation rate two-thirds Average Weekly Wage (AWW) up to

maximum. (See rate card)

2. Multiple employments

a. Base AWW on wages of employer where accident occurred only

b. Do not include wages of other employers

3. Waiting period – three days of business operation with benefits paid for

those three days if claimant is off fourteen days.

4. May not owe temporary total disability benefits if claimant is terminated for

post-injury misconduct (RSMO § 287.170.4).

5. For accidents before August 28, 2017:

a. A claimant may receive Temporary Total Disability benefits “throughout

the rehabilitative process” regardless of whether the claimant has

reached maximum medical improvement.

6. For accidents occurring on or after August 28, 2017:

a. A claimant cannot receive Temporary Total Disability benefits after

the claimant reaches maximum medical improvement.

7. If Employee voluntarily separates from employment when Employer offered

light duty work in compliance with medical restrictions, neither TTD nor TPD

shall be payable (RSMo § 287.170.5)

B. Temporary Partial Disability (RSMo § 287.180)

1. Two-thirds of difference between pre-accident wage and wage employee

should be able to earn post-accident.

2. For accidents before July 28, 2017:

a. A claimant may receive Temporary Partial Disability benefits “throughout

the rehabilitative process” regardless of whether the claimant has

reached maximum medical improvement.

3. For accidents occurring on or after July 28, 2017:

a. A claimant cannot receive Temporary Partial Disability benefits after

the claimant reaches maximum medical improvement.

C. Permanent Partial Disability (RSMo § 287.190)

1. "Permanent partial disability" means a disability that is permanent in nature

and partial in degree.

2. Permanent partial disability or permanent total disability must be

demonstrated and certified by a physician and based upon a reasonable

degree of medical certainty.

3. On minor injury claims, the Administrative Law Judge (ALJ) may allow

settlement without a formal rating report.

4. Part-time employees must use “same or similar” full-time employees wage.

(For PPD only)

5. No credit for temporary total disability benefits paid.

6. There are no caps for benefits.

7. Disfigurement:

a. Applicable to head, neck, hands or arms (RSMo § 287.190.4)

b. Maximum is forty weeks.

8. If a claimant sustains severance or complete loss of use of a scheduled

body part, the number of weeks of compensation allowed in the schedule

for such disability shall be increased by 10 percent.

9. When dealing with minors, you must consider increased earning power for

PPD (not TTD).

10. Calculation of Permanent Partial Disability

a. Claimant has a rating of 10 percent permanent partial disability to the

body as a whole.

b. Claimant qualifies for the maximum compensation rate for his date of

accident of $422.97.

c. Value of rating would be $16,918.80. (400 wks X 10% X $422.97)

D. Permanent Total Disability (RSMo § 287.190)

1. Definition: inability to return to any employment, not merely the employment

in which Employee was engaged at the time of the accident.

2. Benefits are paid weekly over Employee’s lifetime.

3. Law does allow lump sum settlements based on a present value of a

permanent total award.

4. If Employee is permanently and totally disabled as a result of the work

accident in combination with Employee’s preexisting disabilities, and not as

a result of the work accident considered in isolation, the Second Injury Fund

is liable for PTD benefits.

E. Death (RSMo § 287.240)

1. Accidents before August 28, 2017:

a. Death resulting from accident/injury.

i. Total dependents (spouse and children) receive lifetime benefits.

ii. If spouse remarries, he/she receives only two additional years of

benefits from remarriage date.

iii. Children receive benefits until the age of 18, or 22 if they continue

their education full-time at an accredited school.

iv. Total dependents take benefits to the exclusion of partial

dependents.

v. Partial dependents take based on the percentage of dependency.

vi. Lump sum settlements are allowed.

2. Accidents on or after August 28, 2017:

a. Total dependents now includes claimable stepchildren by the deceased

on his or her federal income tax return at the time of the injury

b. Partial dependents no longer entitled to benefits

3. Death unrelated to accident.

a. Any compensation accrued but unpaid at the time of death is paid to

dependents.

b. General Rule: if Employee was not at MMI at the time of death, no PPD

is appropriate.

c. Benefits may continue to the dependents of Employee if Employee dies

from unrelated causes.

X. PROCEDURE

A. Walk-In Settlement Conference

1. Scheduled at Division on a first come, first serve basis. Depending on

venue, backlog generally two weeks to two months.

2. Settlement cannot be completed without Employee sitting before

Administrative Law Judge with explanation of rights and benefits.

3. Settlement values can vary 3-7 percent between venues.

4. If Employee has scarring to upper extremities, head, neck or face, ALJ will

assign disfigurement and the amount will be added to the amount of agreed

settlement.

B. Conference

1. Set by the Division of Workers Compensation or at the request of

Employer’s counsel.

2. Purpose is to see if Employee is in need of treatment or is ready to settle

the claim.

3. Claims need to be assigned to counsel.

4. Need to have a rating report, if applicable.

5. Many cases settle at this time.

6. If Employee fails to attend two Conferences, Division will administratively

close the claim.

C. Pre-Hearing

1. After Claim for Compensation has been filed, the Division of Workers’

Compensation will set Pre-Hearings.

2. Generally requested by a party.

3. Informal settings used to facilitate settlement or outlining of issues.

4. Alternatives at conclusion are:

a. Mediation

b. Continue and reset

c. Settlement

Note: Unrepresented Employees are entitled to Mediations, Hardship Mediations

and Hearings; however, Judges generally recommend they obtain counsel before

any of these procedures.

D. Mediation/Hardship Mediation

1. Set before ALJ.

2. Both parties are typically required to have ratings/or medical reports

regarding treatment needs.

3. Defense counsel required to have costs of medical, temporary total

disability, permanent partial disability and physical therapy.

4. Formal discussion on all issues in case, potential for settlement and

defenses.

5. Defense counsel must have access to client for settlement authority.

6. Alternatives at conclusion:

a. Settlement

b. Reset for Mediation

c. Reset for Pre-Hearing

d. Moved to Trial docket

E. Hearing/Trial – (RSMo § 287.450)

1. Before Administrative Law Judge only.

2. St. Louis: Mediation conference before Chief Judge with assignment of trial

judge if case not settled.

3. Each party can receive one change of judge.

4. Award generally issued within 30-60 days of trial.

5. All depositions and medical evidence must be ready to submit the day of

trial.

F. Hardship Hearings – (RSMo § 287.203)

1. Only issues are medical treatment and temporary total disability benefits

currently due and owing.

2. Claim must be mediated first.

3. After the mediation, hearing can occur 30 days thereafter.

4. Court can order costs of the proceeding to be paid by party if they find the

party defended or prosecuted without reasonable grounds.

5. All depositions and medical evidence must be ready to submit the day of

trial.

G. Notice to Show Cause Setting

1. Will be set by the Division if Claim for Compensation has been filed and

claim has been inactive for one year.

2. Can be requested by Employer if thirty-day status letter was sent to

opposing counsel and no response was received.

3. If claim is dismissed, Employee has twenty days to appeal the dismissal.

H. Appellate Process

1. The Labor and Industrial Relations Commission

a. 20 days to appeal ALJ’s award.

b. Review of the whole record.

c. Labor member, commerce member and neutral member.

2. Court of Appeals

a. 30 days to appeal LIRC decision.

b. Review questions of law only.

3. Supreme Court

a. 30 days to appeal Court of Appeals decision.

b. Review questions of law only.

I. Liens

1. Spousal and Child Support Liens

a. Lien must be filed with the Division of Workers’ Compensation.

b. Temporary Total Disability: the maximum withheld is 25 percent of the

weekly benefit.

c. Permanent Partial Disability: the maximum withheld is 50 percent of the

total settlement.

d. Benefits generally paid to the Clerk of the Circuit Court.

2. Attorney Liens

a. Lien must be filed with the Division of Workers’ Compensation.

b. Must be satisfied prior to payout of proceeds.

XI. DEFENSES

A. Arising out of and in the course of:

1. There must be a causal connection between the conditions under which the

work was required to be performed and the resulting injury. The injury

results from a “natural and reasonable incident” of the employment, or a risk

reasonably “inherent in the particular conditions of the employment,” or the

injury is the result of a risk particular to the employment.

a. Acts of God - not compensable

b. Personal Assault - generally compensable

c. Horseplay - generally not compensable, unless commonplace or

condoned by Employer

d. Personal Errands/Deviation - generally not compensable

e. Personal Comfort Doctrine - Accidents occurring while an employee is

engaged in acts such as going to and coming from the restroom, lunch

or break room are generally compensable.

f. Mutual Benefit Doctrine - An injury suffered by an employee while

performing an act for the mutual benefit of the employer and employee

is usually compensable.

g. Mental Injury - (RSMo § 287.120.8) Claimant must show that mental

injury resulting from work-related stress was extraordinary and unusual

to receive compensation. The amount of work stress shall be measured

by objective standards and actual events. Mental injury is not

compensable if it resulted from any disciplinary action, work evaluation,

job transfer, layoff, demotion, termination, or any similar action taken in

good faith by the employer.

** Amendments made to the The Workers’ Compensation Act in 2005

require that the statute to be strictly construed. This could potentially

impact all common law doctrines such as the Personal Comfort Doctrine

and Mutual Benefit Doctrine.

B. “In the course of”

1. Must be proven that the injury occurred within the period of employment at

a place where the employee may reasonably be, while engaged in the

furtherance of the employer’s business, or in some activity incidental to it.

a. Coming and going - Broad exceptions to this rule.

b. Parking Lot - If Employer exercises ownership or control over the parking

lot, an accident occurring on the lot will generally be found compensable.

c. Dual Purpose Doctrine - If the work of Employee creates the necessity

for travel, he/she is in the course of his/her employment, though he/she

is serving at the same time some purpose of his own.

d. Frolic: “Temporary Deviation”

C. Other Defenses

1. Recreational Injuries (RSMo § 287.120.7) - Not compensable unless

Employee’s attendance was mandatory, or Employee was paid wages or

travel expenses while participating, or the injury was due to an unsafe

condition of which Employer was aware

2. Violation of Employer’s Rules or Policies - An employee is not necessarily

deprived of the right to compensation where his injury was received while

performing an act specifically prohibited by the employer. Compensation is

denied where the employee’s violation is such that it removes him from the

sphere of his employment.

3. Found Dead Presumption: Where a worker sustains an unwitnessed injury

at a place where the worker is required to be by reason of employment,

there is a rebuttable presumption that the injury and death arose out of and

in the course of employment. However, in almost all cases the courts have

failed to permit recovery based on this presumption.

4. Alcohol/Controlled Substances

a. For accidents before August 28, 2017:

i. Total Defense [RSMo. §287.120.6(2)] - Must show that the use

of the alcohol or controlled substance was the proximate cause

of the accident.

ii. Partial Defense [RSMo. §287.120.6(1)] - Employer is entitled to a

50 percent reduction in benefits (medical, TTD, and PPD) if

Employer has policy against drug use and injury was sustained

“in conjunction with” the use of alcohol or nonprescribed

controlled drugs

b. For accidents on or after August 28, 2017:

i. If an employee tests positive for a non-prescribed controlled drug

or the metabolites of such drug, then it is presumed that the drug

was in Employee’s system at the time of the accident/injury and

that the injury was sustained in conjunction with the use of such

drug.

ii. For the presumption to apply, the following requirements must be

met:

(a.) Initial testing within 24 hours of accident or injury

(b.) Notice of the test results must be given to the employee

within 14 calendar days of the insurer/self-insurer

receiving actual notice of the confirmatory results

(c.) Employee must have opportunity to perform a second test

upon the original sample

(d.) Testing must be confirmed by mass spectrometry, using

a generally accepted medical forensic testing

procedure

iii. The presumption is rebuttable by Employee

5. Medical Causation

6. Employer/Employee Relationship

a. Owner and Operator of Truck - Complete defense if the alleged

employer meets the standards set out in RSMo § 287.020.1.

b. General Contractor-Subcontractor Liability (RSMo § 287.040) -

Subcontractor is primarily liable to its employees and general contractor

is secondarily liable. Under the Workers’ Compensation Act, the general

contractor has a right to reimbursement from the subcontractor if the

subcontractor’s employee receives benefits from the general contractor.

c. Independent Contractor - The alleged employer must prove that the

claimant is not only an independent contractor, but must also show that

the claimant is not a “statutory employee.”

7. Intentional Injury (RSMo § 287.120.3) – not compensable

8. Last Exposure Rule (RSMo § 287.063 and § 287.067.7)

9. Idiopathic Injury – “idiopathic” means innate to the individual

10. Failure to Use Provided Safety Devices: (RSMo § 287.120.5) If the injury is

caused by the failure of the employee to use safety devices where provided

by the employer OR from the employee’s failure to obey any reasonable

rules adopted by the employer for the safety of employees, the

compensation shall be reduced at least 25 percent, but not more than 50

percent. Employee must have actual knowledge of the rule and Employer

must have made reasonable efforts to enforce safety rules and/or use of

safety devices prior to the injury.

XII. TORT ACTIONS AGAINST EMPLOYERS – The Missouri Alliance Decision

A. Labor groups challenged the constitutionality of the 2005 amendments.

B. If a work-related incident meets the definition of “accident” and if it causes “injury”

as defined by the Act, then workers’ compensation is the “exclusive remedy.”

C. If not, the employee is free to proceed in tort.

D. Types of injuries and accidents at issue:

1. Injuries that do not meet the definition of “accident,” including repetitive

trauma injuries;

2. Accidents that do not meet the definition of “injury”;

3. Injuries for which the accident was not the “prevailing factor,” but was the

“proximate cause”;

4. Injuries from idiopathic conditions.

E. Likely types of claims:

1. Common law negligence;

2. Premises liability;

3. Respondeat superior.

Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational

purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and

requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of

a specific situation.

RECENTLY ASKED QUESTIONS IN MISSOURI

FROM ISSUES ADDRESSED IN RECENT MISSOURI CASES

Q: Is an Employer’s usual business defined differently at a location where it only

hires independent contractors for a statutory employment analysis?

A: No. Under strict construction of Section 287.040.1, it is not necessary for the Court to

decide whether Section 287.040.1 is limited to a specific location when the statutory

employee is injured when performing the usual business of the employer. The mere fact

that an employer solely hires independent contractors at a single warehouse location

instead of regular employees does not change its “usual business” at that specific

warehouse.

In Sebacher, the claimant performed truck driving and delivery work as an independent

contractor for the employer. The employer operated 18 warehouse distribution centers,

and only hired independent contractors to perform work at the specific warehouse where

claimant performed delivery work out of. The claimant worked full time delivering the

employer’s products out of the specific warehouse where only independent contractors

worked. The claimant was assaulted by one of the employer’s employees while working

at the warehouse. The claimant filed a civil negligence claim against the employer and

the employer filed a summary judgment motion arguing that the claimant’s sole remedy

was through workers’ compensation because he was a statutory employee. The

employer’s summary judgment motion was granted.

On appeal, the claimant argued he was not a statutory employee because the court could

only analyze the specific warehouse he worked at when determining what the employer’s

usual course of business was pursuant to Section 287.040.1. He argued that delivering

products was not the employer’s usual course of business at the specific warehouse he

worked at because the employer never used its own employees to perform work at that

warehouse. The Court held that it was not necessary to look at the specific warehouse

when determining usual course of business because the usual course of business of

employer was the same at every warehouse, which was shipping and delivering products.

The Court determined that the mere fact the employer used independent contractors

instead of regular employees at the warehouse where the claimant was injured did not

change the fact that the usual course of business was being performed there. The

claimant was found to be a statutory employee.

Sebacher v. Midland Paper Company, 610 S.W.3d 402 (Mo. App. E.D. 2020).

Q: Does a letter requesting a continuance of a dismissal setting from a claimant’s

attorney constitute a prima facie showing that the claimant is prosecuting his/her

case when no other evidence is presented?

A: No, more evidence of prosecution is needed or evidence of good cause for failing to

prosecute. “[T]he allegations in [claimant’s] application for review and in his attorney’s

letter – even if taken as true – failed to make a prima facie showing of good cause.”

In Hager, the claimant sustained a work-related injury in 1997. The claimant settled his

claim with the employer/insurer in 2002 and his claim against the Second Injury Fund

remained open. Until early 2019, the claimant had routinely requested continuances of

pre-hearing conferences set on his claim against the Fund. A pre-hearing conference was

set in May of 2019 and the notice was undeliverable to the claimant when mailed. The

Division advised claimant’s attorney the notice was not deliverable and requested

updated contact information. The claim was set on the dismissal docket in October of

2019 and the Administrative Law Judge dismissed the claim with prejudice because

neither the claimant nor his attorney appeared. Claimant’s attorney appealed the

dismissal to the Commission and argued that prior to the dismissal setting he had faxed

a letter to the division advising he could not reach the claimant, the claimant did not

receive the dismissal setting notice, and he had hired a profession investigator to locate

the claimant.

On review the Court of Appeals affirmed that the case dismissal was appropriate because

claimant had not presented a prima facie case that he was prosecuting his claim. The

Court held that nowhere in the claimant’s appeal or letter faxed by his attorney did the

claimant or his attorney alleged facts that would establish a case of good cause for

prosecuting the claim over the many years it had been pending.

Hager v. Treasurer of Missouri, 613 S.W.3d 87 (Mo. App. E.D. 2020).

Q: Does an employee’s violation of a reasonable rule adopted by the employer at

the time of an injury take the employee outside the course of employment?

A: Likely no. “Employer’s general argument that [claimant’s] violation of the safety rule

takes him outside the course of employment would render 287.120.5 (safety reduction

penalty) meaningless.” “The legislature is presumed not to enact meaningless

provisions.”

In Boothe, the Claimant was an installer for a satellite television company. On the date of

his injury, the claimant was driving employer’s van to his first customer’s house for the

day. While driving to the customer’s location, the claimant choked while eating a breakfast

sandwich, blacked out, and crashed into a pillar on the side of the highway sustaining

injuries. The employer had a rule prohibiting its employees from eating or drinking while

driving company vehicles. On appeal, the employer argued that the claimant was outside

his course of employment because he was violating a company rule at the time the

accident occurred.

The Court held that for an employee to be outside of the course of employment while

violating an employer’s rule, the violation of the rule must completely sever the employer-

employee relationship. The Court also cited to section 287.120.5, which provides for a

penalty on compensation when an injury occurs in conjunction with an employee violating

a company rule. The Court determined that if an employee were held to be outside of the

course of employment when violating a company rule, then Section 287.120.5’s penalty

would be rendered meaningless. Therefore, a safety penalty was applied to the claim but

the claim was found to be compensable.

Boothe v. DISH Network, Inc., 2020 WL 7706398.

Q: Will an employee’s additional testimony regarding work-related occupational

disease risk factors at a hearing before an Administrative Law Judge be considered

when that testimony is not documented or supported by any expert opinions?

A: No. “We found that employee’s assertion that opening heavy security doors and

carrying his briefcase caused or contributed to his triggering thumb was speculation and

was not supported by any expert. Accordingly, the only work duty at issue in this matter

that was reviewed and analyzed by a medical expert is employee’s use of the keyboard.”

In Mirfasihi, the claimant worked for the employer for 33 years in a variety of positions. 80

– 85% of the claimant’s job duties involved using a computer keyboard. The claimant

alleged occupational disease in the form of a trigger thumb from his job duties. The

claimant obtained an expert who opined his repetitive hitting of the spacebar on the

keyboard was the prevailing factor in developing his trigger thumb. The employer

obtained a conflicting expert opinion which did not find his work duties to be the prevailing

factor in causing the trigger thumb. At the hearing before the Administrative Law Judge,

the claimant testified for the first time that he also carried his suitcase with his thumb and

opened heavy security doors when going to work with his thumb. The Administrative Law

Judge Held the claimant sustained an occupational disease arising out of and in the

course of his employment.

On review, the Commission held the claimant did not sustain a work-related occupational

disease. The Commission determined the employer’s expert was more credible in finding

that the mechanism of striking the spacebar on a keyboard was not the prevailing factor

in developing a trigger thumb. The Commission also held that the claimant’s testimony

regarding additional work duties which could have posed a risk to developing a trigger

thumb was speculation and not supported by any expert opinions submitted into

evidence.

Jonathan Mirfasihi v. Honeywell Federal Manufacturing & Technologies, LLC, (Mo. Lab.

Ind. Rel. Comm’n, Oct. 7, 2020).

Q: Is a deceased claimant’s dependent, who is over the age of 18 and enrolled at

an accredited educational institution part-time for a short period following turning

18 entitled to extended death benefits until the age of 22, pursuant to 287.240(3)?

A. No. “[Decedent] failed to satisfy the prerequisite of enrollment and continued

attendance as a full-time student at an accredited educational institution as of age 18

necessary to extend her dependency status until age 22.”

In Williams, the claimant was killed in a work-related accident. The claimant’s wife and

dependents were provided death benefits following the accident. At the hearing before

the Administrative Law Judge, the employer argued that the claimant’s oldest daughter

was not entitled to death benefits because she had turned 18 and did not qualify as a

dependent under Section 287.240(3) for continuing death benefits until reaching the age

of 22. The claimant’s oldest daughter turned 18 years old on August 7, 2018. Evidence

presented at the hearing showed that the claimant’s oldest daughter was enrolled for

three course credits at a community college between July 30, 2018 and December 14,

2019.

The Commission held that the claimant’s oldest daughter failed to establish she was a

dependent because she was not a full-time student as of age 18, nor was she continuing

to attend an accredited educational institution after turning 18. The Commission also held

that the statute for providing continued dependency status to children enrolled at

education institutions until the age of 22 nowhere allows for a child who would otherwise

qualify to revive his or her status as a dependent through later enrollment for a full-time

course of study. Therefore, the dependent child must be enrolled full-time, and continue

to attend an educational institution full-time after turning 18 to receive death benefits until

the age of 22.

Jacob Williams v. Reeds, LLC, (Mo. Lab. Ind. Rel. Comm’n, Oct. 5, 2020).

Q: Does an employer/insurer expert physician’s prevailing factor opinion for

occupational toxic exposure claims use the incorrect legal standard when the

physician bases the opinion in part on the lack of scientific studies showing a link

between the occupation and disease (in this case mesothelioma).

A: Possibly, it is a fact intensive analysis. Here, the Court held that because the employer

and insurer’s physician based his prevailing factor opinion in part on the absence of

scientific studies showing a link between the occupation and mesothelioma, that

constituted a misapplication of law.

In 2014, the legislature added provisions to the Missouri Workers’ Compensation Act

allowing for claims alleging occupational exposure to toxic materials. One of the listed

diagnoses required to trigger the enhanced remedy benefit statute is mesothelioma.

Under the Act, § 287.063.1 states “an employee shall be conclusively deemed to have

been exposed to the hazards of an occupational disease when for any length of time,

however short, he is employed in an occupation or process in which the hazard of the

disease exists.”

In this case, the Administrative Law Judge and Commission had ruled that the employer

and insurer’s doctor was more persuasive in finding that the Claimant’s alleged

occupational exposure to asbestos from hair dryers was not the prevailing factor in

causing his mesothelioma and death. The employer and insurer’s doctor advised that

there were no studies showing a link between the occupation of hairdressing and

mesothelioma, while also advising that there were other unknown causes of

mesothelioma and indicating that the claimant used some of the same hairdryers at home

while off work. Additionally, the Commission and ALJ noted that while the claimant was

able to provide brands of hairdryers he used at each employer, he was unable to recall

the specific sub model, and therefore the documents showing which sub models

contained asbestos did not show definitively that the hair dryers used by the claimant

contained asbestos material.

On appeal, the claimant’s widow argued that because employer and insurer’s doctor

based his prevailing factor opinion on whether or not there were studies definitively

showing a link between hairdressing and mesothelioma, he and the judicial bodies that

reviewed the case, applied the incorrect legal standard for determining the prevailing

factor. The Court explained that while typically medical causation is a question of fact, the

misapplication of the legal standard makes it a question of law subject to the Court’s

review. The Court further explained that the correct standard requires the claimant show

“a probability that the working conditions caused the disease” and by requiring studies

showing a definitive link between hairdressing and mesothelioma, the employer and

insurer’s expert opinion applied a different legal standard.

In conclusion, the Court found that the Commission acted without or in excess of its

powers by failing to analyze medical causation and Mr. Hayden's date of injury under the

proper legal standards.

Hayden v. Cut-Zaven, Ltd., 614 S.W.3d 44, (Mo. App. E.D. 2020).

Q: Does a death under the “line of duty” portion of the Missouri Workers’

Compensation Act arise out of and in the course of his employment when a police

chief loading boxes onto a delivery truck while on-call suffers a heart attack?

A: Probably not. Here, the court indicated that the police chief being on-call was not

enough to establish that the injury arose out of and in the course of his employment as a

police officer.

The court advised that there are a line of cases indicating whether or not the officer is

technically on duty and is a factor in determining whether the accident arose out of and

in the course of employment, but is not dispositive. In two cases, Spieler and Mann, the

court indicated that the key issues were whether the actions performed by the officers

were the kind they undertook in their role as officers, or if the officers were injured in a

particular situation by virtue of being a police officer.

In this case, the police chief was on the dock loading packages into a delivery truck when

he had a heart attack and died. The estate argued that because he was on-call as police

chief during that time, he was in active performance of his job duties under the Act. The

court held that under § 287.243.2(5), the officer was not in active performance of his job

duties simply by being on-call as that would expand the meaning of the statute and create

a result not intended by the legislature. Therefore, the court affirmed the Commission’s

decision denying benefits.

Estate of Newman by Eatherton v. City of Leadwood, 611 S.W.3d 529 (Mo. App. E.D.

2020).

Q: Whether a mom and daughter can be substituted as parties on a workers’

compensation where the claimant obtained a final award for permanent total

disability benefits and subsequently died from an unrelated cause?

A: No, the court held that because the final award did not specifically identify the

mom and daughter as dependents, they could not be substituted as a party in order

to receive the lifetime permanent total disability benefits.

In Schoemehl, the Missouri Supreme Court held, “that, when an employee with a

permanent total disability dies of a cause unrelated to the compensable work-related

injury, the disability benefits shall be paid to the employee’s dependents for their lifetime

because the surviving dependents are deemed to have the same rights as the employee.

“ Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. banc 2007). The

court then cites an additional case which held, “the issues of a dependent’s contingent

right to Schoemehl benefits for future determination is preserved if dependency at the

time of the injury is established as a matter of law in the final award.” Edwards v. Treasurer

of the State of Mo., 529 S.W.3d 7, 11 (Mo. App. E.D. 2017)

The court explained that use of the phrase “in the award” indicates that any evidence

presented after the issuance of the final award cannot be considered. Instead, the final

award must be reviewed to determine if there is sufficient information to conclude that the

alleged dependents were such at the time of the injury. In this case, there was not

sufficient evidence in the final award to support that position. The court indicated that in

the forty-nine-page award, the mother and daughter were only referenced in a two-page

section addressing “current activities” where the claimant testified about his physical

limitations. The award also indicated that the claimant drove his daughter to school and

that his wife performed the housework. However, the court noted that the final award did

not identify the wife or daughters by name; therefore, the final award fell short of what is

necessary to preserve a dependent’s contingent rights to benefits. The court further

indicated that once the final award was issued, the mother and daughter had lost their

right to benefits despite providing additional information that supported their status as

dependents.

Lawrence v. Treasurer of State - Custodian of Second Injury Fund, 609 S.W.3d 782, (Mo.

App. W.D. 2020).

Q: Is a claimant’s knee injury, suffered by missing a step while walking down an

ordinary flight of stairs at work while conducting a security check, a compensable

injury under the Missouri Workers’ Compensation Act?

A: No, not here. Section 287.120.1 provides that an employer “shall be liable, irrespective

of negligence, to furnish compensation under the provisions of [the Act] for personal injury

... of the employee by accident ... arising out of and in the course of the employee's

employment.” For an injury to be compensable it must arise “out of and in the course of

... employment pursuant to section 287.020.3(2).” Johme v. St. John's Mercy Healthcare,

366 S.W.3d 504, 509 (Mo. banc 2012). There must be a causal connection between the

injury at issue and the employee’s work activity. Id. Section 287.020.3(2) provides that:

“An injury shall be deemed to arise out of and in the course of the employment only if: (b)

It 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.”

In Marks, the employee was working for the Department of Corrections on November 9,

2017 and was descending a staircase while conducting a security check when he mis-

stepped and felt his right knee twist. He reported the injury involved him simply stepping

off the step wrong. He later testified he was looking back at another co-worker, to ensure

the worker’s safety, when the accident occurred. In finding the employee’s testimony not

to be credible, the ALJ denied benefits, finding “the accident occurred when [Marks]

missed a step and did not arise out of and in the course of employment.” The LIRC

affirmed the award of the ALJ denying benefits and the employee appealed. The Court of

Appeals applied a two-part test, “which first requires identification of the risk source of a

claimant's injury, that is, identification of the activity that caused the injury, and then

requires a comparison of that risk source or activity to normal nonemployment life.” In

finding that the risk source of claimant’s injury was descending stairs and was not entitled

to an inferred heightened risk while conducting a security check, the Court found

employee’s injury resulted from a risk source which he is equally exposed in his

nonemployment life. Thus, the Court affirmed the LIRC’s denial of benefits under the

Missouri Workers’ Compensation Act.

Marks v. Missouri Dep't of Corr., 606 S.W.3d 159 (Mo. App. W.D. 2020).

Q: Are injuries sustained by an accidental trip and fall at a treating physician’s

office compensable when the claimant was treating for a work-related respiratory

injury following a chemical exposure?

A: No. An injury “by accident is compensable only if the accident was the prevailing factor

in causing both the medical condition and disability.” Section 287.020.3(1). An injury must

arise “out of and in the course of employment.” Id. “For an injury to be deemed to arise

out of and in the course of the employment under section 287.020.3(2)(b), the claimant

employee must show a causal connection between the injury at issue and the employee’s

work activity.” Johme v. St. John’s Mercy Healthcare, 366 S.W.3d 504, 509-10 (Mo. banc

2012). For an injury to arise out of and in the course of her employment, an employee

must demonstrate the accident is a prevailing factor of the injury and is not a risk that the

claimant would have been exposed outside of and unrelated to the employment. Section

287.020.3(2)(a)-(b).

In Schoen, the employee appealed from the LIRC’s decision denying benefits because

employee failed to prove her work injury was the prevailing factor causing any permanent

disability she suffered. On May 8, 2009, Employee was exposed to cypermethrin, an

insecticide, while working as a charge nurse at Mid-Missouri Mental Health Center.

Employee complained of throat and eye irritation; she also began coughing and

wheezing. Employer sent her to the emergency room on May 11, 2009. Employee was

prescribed medication and returned to work without any limitations. While attending an

appointment at Dr. Runde’s office, she tripped on a dog that had gotten loose in the office,

and fell, sustaining injuries to her knees, lower back, hip, and neck. The employee filed

an amended claim, asserting injuries from her fall in Dr. Runde’s office.

The ALJ initially awarded benefits for both the cypermethrin exposure and the accidental

fall, finding the trip and fall to be the “natural and probable consequence of” the

cypermethrin exposure. Employer appealed and the LIRC reversed the award, finding the

employee failed to prove the cypermethrin exposure was the prevailing or primary factor

in causing any alleged injury from being tripped accidently at Dr. Runde’s office. The

employee appealed to the Missouri Court of Appeals and the matter was transferred to

the Missouri Supreme Court.

The Court found Employee’s risk of being tripped accidently is a risk she equally is

exposed to outside of her employment. Any of Employee’s injuries stemming from the

accidental tripping did not occur because of a condition of her employment. See, e.g.,

Annayeva v. SAB of the TSD of the City of St. Louis, No. SC98122, 597 S.W.3d 196, 200,

(Mo. banc March 17, 2020) (finding a teacher who slipped in the hallway of the school

where she taught was not entitled to workers’ compensation benefits because she was

unable to prove a causal connection with her employment). The Court found the assertion

of simple but-for causation by the employee insufficient to establish a causal connection

with her work. The Supreme Court affirmed the LIRC’s denial of benefits for the accidental

tripping incident while claimant was in the physician’s office for treatment involving her

cypermethrin exposure.

Schoen v. Mid-Missouri Mental Health Ctr., 597 S.W.3d 657 (Mo. 2020).

Q: Whether the LIRC, in determining the Second Injury Fund’s (SIF) liability for an

employee’s permanent total disability, was required to determine that employee’s

preexisting disease was symptomatic at the time of the employee’s primary

compensable injury?

A: No. Section 287.220.2 provides for SIF liability for workers who are permanently and

totally disabled by a combination of past disabilities and a primary work injury. Payne v.

Treasurer of State, Custodian of Second Injury Fund, 417 S.W.3d 834, 847 (Mo. App.

S.D. 2014). Section 287.220.2 provides: “If any employee who has a preexisting

permanent partial disability whether from compensable injury or otherwise, of such

seriousness as to constitute a hindrance or obstacle to employment or to obtaining

reemployment if the employee becomes unemployed, ... and if the employee is entitled

to receive compensation on the basis of the combined disabilities, the employer at the

time of the last injury shall be liable only for the degree or percentage of disability which

would have resulted from the last injury had there been no preexisting disability. After the

compensation liability of the employer for the last injury, considered alone, has been

determined by an administrative law judge or the commission, the degree or percentage

of employee's disability that is attributable to all injuries or conditions existing at the time

the last injury was sustained shall then be determined by that administrative law judge or

by the commission and the degree or percentage of disability which existed prior to the

last injury plus the disability resulting from the last injury, if any, considered alone, shall

be deducted from the combined disability, and compensation for the balance, if any, shall

be paid out of a special fund known as the second injury fund.” “The determination of

whether a claimant is permanently and totally disabled is based upon the claimant's ability

to compete in the open labor market.” Brashers v. Treasurer of State as Custodian of

Second Injury Fund, 442 S.W.3d 152, 155 (Mo. App. S.D. 2014). There is no explicit

requirement that a pre-existing condition be symptomatic at the time of the subsequent,

primary injury.

In Atchison, the employee suffered a primary injury involving a herniated disc at L4-L5

following a compensable slip and fall at work. This fall, in isolation, created a 35%

permanent partial disability to the body as a whole. The employee suffered from

preexisting condition including both degenerative disc and degenerative joint disease

from L2-L3 through L5-S1 which was a permanent and potentially disabling medical

condition. This pre-existing degenerative condition created a 65% permanent partial

disability to the body as a whole. The employee was held to be permanently and totally

disabled following the work-related injury, which rendered his pre-existing condition

symptomatic and severely debilitating. On appeal, the SIF acknowledged the factual

findings of the ALJ and LIRC, but argued the LIRC mis-applied the law as pre-existing

permanent partial disability was not symptomatic and, therefore, not compensable. The

Court of Appeals found no requirement in the statute that any of the preexisting injuries

be “symptomatic” prior to the primary work injury in creating SIF liability for a permanent

total disability claim. The requirement is simply that the Commission must find that the

combination of the last injury and the preexisting disabilities resulted in permanent total

disability. In finding no requirement that pre-existing disabilities must be symptomatic at

the time of the second, primary injury, the Court of Appeals upheld the award of

permanent total disability against the SIF.

Atchison v. Missouri State Treasurer, 603 S.W.3d 719, 724 (Mo. App. S.D. 2020).

Q: Did an obese employee (deceased) suffering from a heat stroke while working

outside suffer a compensable workers’ compensation injury despite his obesity

being asserted as an idiopathic condition causing his injury?

A: Yes, when there is substantial credible evidence to support working in extremely hot

weather constituted an unexpected traumatic event or an unusual strain and was the

prevailing factor in causing the employee’s heat stroke and resulting death. Tyler Halsey

(Deceased) v. Townsend Tree Serv. Co., LLC). The exclusion from the category of

compensable injuries of an injury resulting directly or indirectly from idiopathic causes is

in the nature of an affirmative defense to the employer and is not the employee’s burden

to prove.

In Halsey, the 23-year-old claimant was working outside on July 22, 2016, trimming trees

and chipping and hauling brush in extreme heat. Claimant had just been hired and began

working for respondent just three days prior to his accident, and previously had not

worked in four years. The temperatures during the afternoon of July 22, 2016 in Poplar

Bluff ranged from 111 degrees to 114 degrees Fahrenheit. While working, claimant

passed out and was unresponsive. It was later determined he had a heat stroke. Claimant

sadly passed away the following day while in the hospital. Claimant’s preexisting

conditions included morbid obesity, bipolar disorder, and psychosis. Both physicians

performing autopsies on claimant opined he died of hyperthermia, or abnormally high

body temperature.

The court found claimant’s heat stroke was an “accident” under 287.020.2, being both “an

unexpected traumatic event” and an “unusual strain identifiable by time and place of

occurrence and producing at the time objective symptoms of an injury caused by a

specific event during a single work shift.” Medical experts testified that although claimant

was extremely obese, claimant’s occupational activities and the extreme heat on July 22,

2016 were the prevailing factor which caused employee's diagnosed heat stroke and

ultimate death.

Interestingly, claimant’s counsel argued his claim is not subject to the Missouri Workers’

Compensation Act because his obesity qualifies as an idiopathic condition under

287.020.3(3), which provides “An injury resulting directly or indirectly from idiopathic

causes is not compensable.” The court reviewed idiopathic condition arguments from past

cases. They applied the following reasoning and rule:

[I]n order for an idiopathic condition to qualify for the current workers'

compensation exception, the employee's injury must be entirely idiopathic

in nature such that no other factor precipitates the injury. In other words, an

idiopathic condition qualifies for the exclusion only if it exposes the

individual employee to a special risk of injury that only exists because of the

presence of the idiopathic condition in that employee.

Because all of the employees of respondent working in the heat on the date of accident

were also suffering from heat exhaustion symptoms and were equally exposed to the

possibility of heat stroke by their shared working conditions, claimant’s injury did not result

directly or indirectly from an idiopathic condition. Therefore, the Commission affirmed the

award of compensation.

Tyler Halsey (Deceased v. Townsend Tree Serv. Co., LLC Insurer: Ace Am. Ins. Co.,

Injury No. 16-053905, 2020 WL 1903334 (Mo. Lab. Ind. Rel. Comm’n Apr. 9, 2020)

Q: Whether an employee grabbing the shirt of a co-worker prior to being hit multiple

times in the head by that co-worker has suffered a compensable injury under the

Act?

A: No. Under RSMo 287.120.1, every employer subject to the provisions of this chapter

shall be liable, irrespective of negligence, to furnish compensation under the provisions

of this chapter for personal injury or death of the employee by accident or occupational

disease arising out of and in the course of the employee's employment. The term

“accident” as used in this section shall include, but not be limited to, injury or death of the

employee caused by the unprovoked violence or assault against the employee by any

person. Since 1969, Section 287.120.1 has included “unprovoked assaults” within the

statutory definition of “accident.” The Missouri Court of Appeals has held that it logically

follows that injuries from provoked assaults are not compensable. Van Black v Trio

Masonry, Inc., 986 SW 2nd 200 (Mo. App. WD 1999).

In Ford, Claimant worked as a yard equipment operator for respondent for about a year

prior to his alleged work-related injury. There is conflicting testimony in the record from

the alleged assailant co-worker and the claimant on the specific events surrounding the

physical altercation that took place on June 7, 2015. The testimony that is not contradicted

by Claimant, is that both men had sat in a work truck, and that Claimant had requested

to ride with his co-worker, Mr. Rhoads during their shift. Mr. Rhoads testified he didn’t

want to listen to claimant complain about his job, and told claimant to get out of his truck.

The two employees exchanged some argumentative and explicative words. Mr. Rhoads

testified, and claimant did not deny, that after they were arguing and got out of the truck,

claimant grabbed Mr. Rhoads by the collar, and then Mr. Rhoads struck claimant in the

head and jaw. Claimant was evaluated by several physicians with complains of dizziness

and headaches, but objective findings were inconclusive of a concussion. Claimant then

sought workers’ compensation benefits for his injuries from the fight with his co-worker.

The Commission affirmed the ALJ’s denial of benefits, finding the substantial credible

evidence supported the finding that Claimant provoked Mr. Rhoads prior to the assault

and fight which subsequently ensued. The LIRC affirmed the denial of benefits and upheld

the rule that if an employee physically places his or her hands on another employee prior

to being injured in an assault or fight, the employee has provoked the assault and has not

suffered a compensable “accident” under Section 287.120.1.

Nathan Ford v. Associated Elec. Coop. Inc. Insurer: Self-Insured, Injury No. 15-047091,

2020 WL 3130119 (Mo. Lab. Ind. Rel. Comm’n June 4, 2020).

Q. Can PPD benefits be awarded from the Second Injury Fund for injuries that

occurred after January 1, 2014?

A. No. In Cosby v. Treasurer of the State as Custodian of the Second Injury Fund,

Employee sustained a left knee injury at work in 2014 and filed a workers’ compensation

claim against his employer and the Second Injury Fund. Employee alleged that he was

permanently and totally disabled or alternatively, permanently and partially disabled as a

result of his knee injury combined with preexisting disabilities. The Missouri Supreme

Court held that despite Employee’s previous injuries, PPD benefits would not be awarded

from the Fund for work injuries occurring after January 1, 2014. Additionally, the Court

held that PTD benefits would be analyzed in the same manner as PPD benefits, meaning

that the date of the last injury is the only date considered in determining if Fund liability

exists.

Employee argued that § 287.220 violated due process, equal protection, and the open

court’s provision of the Missouri constitution. The Court held that § 287.220 does not

violate the open courts provision of the constitution because the statute’s failure to

authorized PPD claims against the Fund does not arbitrarily deny access to Missouri

courts; rather it eliminates a statutory cause of action. Employee argued that the statute

violated his due process rights because the statute does not inform the public which

rules govern their particular circumstances. Court ruled that Employee’s due process

violation argument conflated statutory ambiguity with vagueness, and therefore, failed

to establish § 287.220 violates his due process rights. Finally, the Court held that the

§ 287.220 does not violate the equal protection clause because there was a rational

basis behind the creation of the statue because the Fund was insolvent at the time the

legislature amended the statute to eliminate PPD benefit claims against the fund. The

Court confirmed the Commission’s decision to deny PPD and PTD benefits. This

decision overruled Gattenby v. Treasure of the State of Missouri.

Cosby v. Treasurer of State as Custodian of Second Injury Fund, SC 97317, 2019 WL

2588575 (Mo. 2019).

Q. Must an accident be alleged in an injury report in order to be compensable?

A. No. In Harley Davidson Motor Company, Inc. v. Jones, Employee was injured at work

and filed a report of injury the same day. The report of injury did not include his address

and stated that he hurt his “right elbow and right hand.” Employee began experiencing

back pain and a doctor opined the accident was the prevailing factor of Employee’s

back pain. Employer argued that notice of the claim was improper due to Employee’s

failure to provide his address and failure to indicate the nature of his injury correctly.

The Court of Appeals affirmed The Commission’s decision and stated that the purpose

of the notice statute was to give the employer timely opportunity to investigatefacts

surrounding the accident. The Court stated that since Employee reported the accident

the same day it occurred, there was substantial evidence the employer had knowledge

of Employee’s injury and therefore had the opportunity to investigate and was not

prejudiced.

Harley-Davidson Motor Company, Inc. v. Jones, 557 S.W.3d 328 (Mo. App. W.D. 2018).

Q. Does the Court of Appeals have authority to review cases where the Employer

is appealing a ruling of temporary awards by The Commission?

A. Not Necessarily. In AB Electrical, Inc. v. Franklin, Employee was working on scaffold

performing plaster work when he fell from the scaffolding and suffered injuries to his

head, back, and neck. Employee was taken to the hospital and tested positive for THC.

The Commission awarded Employee TTD and past and future medical benefits but left

the matter open until a final award was issued. Employer appealed and their claim was

dismissed by The Court of Appeals. In dismissing this claim, The Court strictly applied

the “finality” rule which states that an award must be final before the Court of Appeals

can review the Commission’s decision. The Court decline to use a judicially created

exemption that allowed appellate courts to review the issue of employer liability before

a final judgment. The Court implied that the Court of Appeals may still have statutory

authority to review cases of temporary awards of PTD that are effectively “final

decisions.”

AB Electrical, Inc. v. Franklin, 559 S.W.3d 38 (Mo. App. W.D. 2018).

Q. Does an Employee firefighter need to show specific exposure to a carcinogenic

substance in order to receive benefits under worker’s compensation for an

occupational disease?

A. No. In Cheney v. City of Gladstone, Employee was a firefighter who contracted non-

Hodgkin’s lymphoma that ultimately resulted in his death. The ALJ denied benefits to

the surviving spouse because there was no evidence the Employee, as a firefighter,

was ever specifically exposed to any substance known to cause non-Hodgkin’s

lymphoma. The Commission reversed the ALJ’s decision and awarded benefits, stating

that independent of the Firefighter Presumption (§ 287.067), Employee need not show

any specific exposure in order to receive benefits.

Employer appealed and argued that there is no recognizable link between non-

Hodgkin’s lymphoma and Employee’s work as a firefighter. Employer based this

argument on an opinion by Employee’s doctor, what stated that there is no known

cause non-Hodgkin’s lymphoma and no peer reviewed literature connecting exposures

experienced during firefighting to the development of the disease. The Court rejected

Employer’s argument and upheld the Commission’s decision, stating that there was

evidence presented to support a finding that Employee’s carcinogenic exposures as a

firefighter was the prevailing factor in his development of lymphoma.

Cheney v. City of Gladstone, WD 81939, 2019 WL 2345247 (Mo. App. W.D. 2019).

Q. If an employee is injured while pushing a personal cart to carry items into

work, is the injury compensable?

A. Yes. In McDowell v. St. Luke’s Hospital of Kansas City, Employee had two prior hip

replacement surgeries completed. She had a difficult time carrying all of her materials

from the parking garage to her work station so her supervisor recommended and

supplied her with a 2-wheeld cart to carry her items. On the date of the accident,

Employee fell while pushing her two wheeled cart through a congested doorway and

sustained an injury to her wrist. Employer argued that they were not liable for

Employee’s injuries because she was at no greater risk for falling when rolling a cart

than she would be in her everyday life. Employer also argued that the cart Employee

was pushing was not work related because the cart was not necessary for Employee to

complete her work. The court found that Employee’s injury arose out of employment as

required by § 287.020.3(2)(b) because there was substantial evidence to support

Commission’s finding that Employee was not equally exposed to the cause of her injury

outside of her workplace in non-employment life.

McDowell v. St. Luke’s Hospital of Kansas City, 572 S.W.3d 127 (Mo App. W.D. 2019).

Q. Must medical experts use specific technical language to interpret § 287.020.3?

A. No. In Knutter by Knutter v. American National Insurance, Employee slipped and fell

on ice at work and became wheelchair dependent. Shortly after her fall, employee began

experiencing shortness of breath and suffered a pulmonary embolism and passed away.

The Commission awarded Employee’s family with death benefits. Employer appealed

and argued that The Commission’s decision was not supported by sufficient and

competent evidence because Employee’s medical expert did not use specific technical

language to prove that Employee’s injury was work related. The Court held that a

medical expert does not have to use technical language to interpret §

287.020.3. The Court held that because the opinions of Claimant’s medical experts,

read in context of their plain meaning, show their respective opinions that Employee’s

workplace injury was the prevailing factor that ultimately lead her death, The

Commission’s awarded was supported by sufficient and competent evidence and

should be upheld.

Knutter by Knutter v. American National Insurance, SD 35644, 2019 WL 2092779 (Mo.

App. S.D. 2019).

Q. Does a specific analysis need to be used in order to prevail in a not-supported-

by-substantial-evidence challenge to awarded benefits?

A. Yes. In Customer Engineering Services v. Odom, Employee sustained injuries to his

neck, elbow, and back. Employee was never able to return to work after his injuries and

a vocational expert testified that Employee was unemployable in the open labor market

due to his injuries. The court held that a successful non-supported-by-substantial

evidence challenge involves three analytical steps that must be proven: (1) Identify a

factual proposition needed to sustain the result; (2) Identify all favorable evidence in the

record supporting the proposition; and (3) Demonstrate, in light of the whole record, that

the step two evidence and its reasonable inferences are so non-probative that no

reasonable mind could believe the proposition. The court rejected Employer’s arguments

against future medical expenses and PTD benefits on grounds that Employer’s

arguments lacked persuasive or analytical value because they ignored the three steps

listed above. The Court reversed and remanded the Commission’s findings regarding

past medical benefits because Employer did not receive proper notice of Employee’s

need for treatment.

Similarly, in Robinson v. Loxcreen Company, Inc., Employee was injured in a work

accident and filed for PTD for injuries to his head, right side of face, right eye, right

shoulder, hands, left hip, and left knee. Employer and The Fund Appealed. The Court

Appeals affirmed the Commission’s findings and stated that Employer’s failure to apply

the correct three-step analytical process was clear and refused to overturn the

Commission’s decision.

Customer Engineering Services v. Odom, 573 S.W.3d 88 (Mo. App. S.D. 2019);

Robinson v. Loxcreen Company, Inc., 571 S.W.3d 247 (Mo. App. S.D. 2019).

Q. Does the statute of limitations for filing a workers’ compensation claim for an

occupation disease against the Second Injury Fund begin when the disease is

reasonably discoverable and apparent?

A. Yes. In Guinn v. Treasurer as Custodian of Second Injury Fund, Employee filed a

claim against Employer and the Fund for hearing loss and tinnitus as a result of his

exposure to industrial noise while working at Employer. The Commission denied

Employee’s claim and ruled that it was barred by the statute of limitations. The Court of

Appeals reversed and held that, because Employee’s hearing loss is considered an

occupational disease under § 287.067.4, the statute of limitations did not begin to run

until Employee’s hearing loss was reasonably discoverable and apparent. The court

ruled that Employee’s injury was reasonably discoverable and apparent within two years

of filing the workers’ compensation claim and reversed the Commission’s decision.

Guinn v. Treasurer of Missouri as Custodian of Second Injury Fund, SD 35694, 2019

WL 2537436 (Mo. App. S.D. 2019).

Q. Is testimony of an expert witness who bases their opinions solely on

Employee’s subjective complaints and not on medical records admissible under

490.065?

A. No. In Hogenmiller v. Mississippi Lime Company, Employee filed a claim for

compensation for his tinnitus, stating he had worked around loud machinery for over

twenty years at Employer. Employee presented testimony from Dr. Mason, an

audiologist, who did not review any of employee’s medical records and relied solely on

subjective complaints of Employee which were obtained via a questionnaire and a sound

matching procedure. Employer presented testimony from a medical doctor with a

specialization in otolaryngology.

The Commission found Dr. Mason competent to testify as an expert and awarded

benefits to employee. Employer appealed stating that Dr. Manson was unqualified to

testify about tinnitus because he focused his practice on the field of audiology and not

tinnitus. The Court rejected this argument and cited § 490.605.1, which outlines the

criteria for admission of expert testimony. The Court stated that given Dr. Manson’s

credentials and considering he has developed informed techniques to measure

Employee’s tinnitus, the Commission did not err in finding Dr. Manson was a qualified

expert.

Hogenmiller v. Mississippi Lime Company, 574 S.W.3d 333 (Mo. App. E.D. 2019).

Q. Can a co-employee be held liable for another Employee’s injuries when

worker’s compensation is recoverable?

A. It depends. In Mems v. LaBruyere, Employee was injured when his co-employee

(LaBruyere) unscrewed a roller door that fell directly onto Employee who was working

below. Employee filed a worker’s compensation claim against Employer and a civil

lawsuit against LaBruyere. LaBruyere argued that Mo. Ann. Stat. § 287.120.1(2012),

which provides immunity to co-employees for civil liability for injuries under which

workers compensation is recoverable unless the employee is engaged in affirmative

negligent acts that purposefully and dangerously caused or increased the risk of injury,

prohibits Employee from bring suit.

The Court held LaBruyere was not exempt from immunity under this statute. The Court

held that co-employees may be held liable for negligent acts if they failed to maintain a

certain level of care to protect fellow employees against unreasonable risks of harm and

create or increase the risk of danger to the injured employee. The Court noted that the

co-employee must have purposefully performed the act which resulted in Employee’s

injuries, even if it was not initiated to cause harm.

Further, the court held that in order to determine if the injury was caused by a breach

of the Employer’s non-delegable duties, if must be determined if the risk was

“reasonably foreseeable” from the employer’s perspective. The Court stated that if the

risk was not “reasonably foreseeable” then the injury was not caused by a breach of

employer’s non- delegable duties.

The Court stressed that employees still owe a common law duty of care to each other

beyond the bounds of workers’ compensation.

Mems v. LaBruyere, ED 106319, 2019 WL 2182444 (Mo. App. E.D. 2019)

Q. Is an amended claim barred by the statute of limitations if it creates a new claim?

A. Yes. In Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund,

Employee filed a hearing loss claim against Employer. Employee then amended the

claim and added claims of Tinnitus and Meniere’s disease against Employer. One-

hundred and thirty days later, Employee filed a second amended claim with the addition

of second injury fund liability for pre-existing Meniere’s disease. Employee settled

against the Employer.

The Commission found the claim against The Fund was barred by the statute of

limitations. Employee appealed. The Court of Appeals affirmed the Commission’s

decision. The Court stated that the second amended claim was not a new claim against

the Employer because “it did not address the same occurrence or term of employment

and in some way add to the original claim by adding some cause, effect, or injury relating

back to the original claim.” The Court ruled that the second amended claim was not “a

claim” against Employer and was barred by the statute of limitations. The court also

ruled that settlement stipulations are considered a Claim against the Employer only

when a formal claim has not been filed.

Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund, ED 106949, 2019

WL 1120097 (Mo. App. E.D. 2019).

Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational

purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and

requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of

a specific situation.

Notes Pages

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Notes Pages

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