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Missouri Top Cases 10/23/2009 3:52:33 PM EST MISSOURI TOP CASES, powered by Huck, Howe & Tobin (updated 11/13/2009) Huck, Howe & Tobin These case summaries were written by Martin Klug at Huck, Howe & Tobin.
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Exclusive remedy defense lost in late answers. Defendants in tort claims must assert any statutory employment defense timely, and if they don’t use it they lose it, and a plaintiff can proceed in circuit court. The circuit court does not lose jurisdiction merely because the action might have been pursued under the Worker’s Compensation Act, pronounced the Missouri Supreme Court in an attempt to clean up “sloppiness” of precedent defining whether a circuit does or does not have jurisdiction in cases that sound like they might arise under the Compensation Act. In McCracken v Wal-mart Stores East, No. SC 90050 (Mo. 10-27-2009), Wal-mart on the day of the trial asserted for the first time a statutory employment defense, and the circuit court dismissed the case due to lack of subject matter jurisdiction. A Wal-mart employee pushed a heavy bread rack into plaintiff’s shoulder. Plaintiff worked for IBC, a vendor that emptied bread racks from IBC's truck to a loading area before product was stocked on the Wal-mart display racks. Plaintiff settled his comp claim against IBC. The Supreme Court concluded the circuit court erred in dismissing the case due to lack of subject matter jurisdiction, noting that the circuit courts retains jurisdiction over all cases and matters according to the state constitution. The Compensation Act cannot overrule the provisions of article V, section 14 giving circuit courts jurisdiction over personal injury claims. The court noted further that statutory reform of the Comp Act changed construction from liberal to strict, and strict construction no longer mandates comity to the Commission in close cases. A plaintiff does not have an unequivocal right to proceed in circuit court, but the circuit court retains jurisdiction to address an exception to tort liability created by the Act as an affirmative defense under Rule 55.08 or 55.27(a). Alternatively a claimant may file in worker's compensation, and the Commission may make a determination whether or not claimant is a statutory employee to allow a claimant to proceed in tort. The court addressed the merits because of historical confusion and applied the rule applied prospectively only.
Paramedic’s fall at home found compensable. A paramedic in her pajamas eating ice-cream at home on a holiday became an employee on a special task entitled to benefits under the Missouri Worker's Compensation Act once she received a page to report to the ambulance barn to respond to a priority one emergency. The Commission originally denied benefits, and affirmed the administrative law judge's award, but the court of appeals remanded the case in February 2009 for additional findings. The Commission notes that this "peculiar case" constitutes an exception to the going and coming exclusion and concludes that claimant was no longer merely on call status but on a special task to respond "as fast as she could" under an employer mandate to respond preferably in 5 minutes. The Commission found her accident arose out of and in the course of her employment when she fell in her home garage, tore her ACL and developed subsequent complications of DVT that included work-up at the Mayo Clinic. The Commission noted that claimant's pay rate increased upon receiving the page. The Commission adopted her expert’s opinion that DVT flowed from the accident, and awarded disability for the knee and DVT condition with open medical. The dissent found claimant had not yet crossed the portal of her own home to conclude that her errand had started. The case is Stegman v Grand River Regional Ambulance District, DOLIR 11-4-09 (Affirmed 2-1).
Death Before Maximum Medical Improvement Bars Benefits. A surviving spouse cannot recovery benefits when an injured employee dies from unrelated causes unless the claimant has reached maximum medical improvement and benefits have accrued into existence as a legally enforceable right, based on the new court of appeals decision in Cantrell v Baldwin Transportation, No. SD 29642 (Mo. App. 10-21-09). Section 287.230.1 distinguishes whether a survivor can recover benefits when death is from causes related or unrelated to the industrial accident. Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. The issue in the case was whether or not claimant had reached MMI. The claimant's counsel obtained a disability rating and asserted claimant was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued [The Commission previously found an attorney could prove what disability had accrued by a "rating" exam after claimant's death. Henke v Hunt Concrete Co., DOLIR 3-20-01.], as required by 287.230.1, to entitle a surviving spouse to recover benefits when death is from unrelated causes. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.
Settlement Agreement Not Enforced When Issues Concerning Medicare Set Aside Trusts Not Resolved. The City of St. Louis and the claimant negotiated a purported settlement of a 2002 case while an award was pending. Claimant later sought to enforce a settlement agreement for $200,000 and to fund a MSA, after the administrative law judge issued an award for approximately $61,000 that denied future medical. The court found the settlement unenforceable as an agreement to fund a Medicare set aside lacked specific terms to demonstrate a meeting of the minds. The bad news for the employer, though, happened when the Commission later modified the award on remand for permanent and total disability, an exposure likely to exceed the original award or the original settlement. The court of appeals rejected the employer’s estoppel argument that there was nothing inconsistent based on the mandate for the Commission to change its findings from PPD to PTD. The case is Roberts v. City of St. Louis, No. ED 92438, 254 S.W.3d 280, issued Sept. 1, 2009.
Settlement Agreement Not Enforced When Issues Concerning Social Security Offset Language Not Resolved. In Vincent v Mo. State Treasurer as Custodian of the Second Injury Fund, 287 S.W.3d 715 (Mo. App. 2009), the Southern District on July 8, 2009, the Second Injury Fund tried to enforce a settlement agreement against the claimant and the court found sufficient evidence to award permanent and total disability benefits. The court refused to enforce a settlement agreement, in part, due to lack of specific terms regarding social security offset language. In addition, the court noted that the claimant was ‘under stress’ and the record was unclear that he fully understood his rights, a statutory requirement under 287.390.1, due to lack of evidence in the court file as to what transpired at a settlement conference. According to the Commission’s award, claimant believed the case had a value over $200,000, he had retained since 2000 three separate attorneys, and refused to sign documents the day after a settlement conference for an “agreement” of $15,000.
Parking Lot Cases. In Hammonds v Columbia Car Wash, affirmed by the Commission on 9-21-09, claimant fell on his employer’s premises when he arrived early and was off the clock. The Commission denied benefits noting that claimant failed to prove his early arrival constituted a “mutual benefit” to his employer. A Commissioner concluded claimant’s accident did not arise under the Act since his shift had not started. In Henry v Precision Apparatus, No. 29772, 2009 MOWCLR LEXIS 56 (appeal to southern district filed 4-29-09) claimant arrived 15-20 minutes before a shift and sustained injuries on-premises moving a rock while helping a friend change a tire. The Commission affirmed the finding that the injury did not arise from a single shift because claimant had not clocked in. The case has remained on appeal for nearly 5 months.
Commentary: Missouri reform in 2005 narrowed the definition of an accident under worker’s compensation law. Among other changes, 287.020.2 requires that an accident must be caused by a specific event during a single work shift. Claimants arriving early and injured prior to work shifts do not have compensable injuries, according to two recent Commission decisions. This amendment may radically change litigation of parking lot cases. Reformers intended to step away from awards arising from parking lot injuries when they changed 287.020.5 and abrogated the extended premises doctrine to the extent that property was not owned or controlled by the employer. The recent Commission-level cases requiring accidents to occur in the course of a “single shift” arguably reduces more cases even when the employer maintains parking lots and surrounding premises. There is no statutory definition of “single shift” which may create many challenges, especially with salaried employees who work irregular hours, bring work home, or remain “on-call” status. If clocking in becomes the point of turning on the worker’s compensation law, parking lot litigation may now shift entirely from comp to civil court without exclusive remedy defenses.
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