MO Comp Update – Commission awards PTD plus $400k for unpaid benefits after Employer’s improper denial of the claim

MO Comp Update

The Missouri Industrial Commission’s award in Marc Meng v. SystemAire, Inc. (click HERE for the decision) is a perfect example of what used to be called “Murphy’s Law”: Anything that can go wrong will go wrong.

Claimant alleges injury by occupational disease from repetitive overhead work as a sheet metal worker resulting in surgical treatment to both wrists and elbows which then developed into thoracic outlet syndrome. The Commission affirmed a finding that claimant is PTD on the basis of the original injury alone with complications of nerve palsy and finds the first of four employers liable under the last exposure rule.

WHY IS THIS DECISION IMPORTANT?

First: This case exemplifies what is called “The Last Exposure Rule”. Many believe this rule simply means the last employer pays. That is incorrect. The Last Exposure Rule, Under section 287.063, states: “The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability.”

In the attached case, there were 3 employers AFTER the main employer. However, they were not liable because the claimant filed his claim for compensation while he was working for SystemAire and after he missed work (from SystemAire) due to the injury…even though the claimant eventually left SystemAire and worked for two other employers at a later time. Missing time from work and actually filing the claim for compensation are both considered as “evidence of disability”.

Since SystemAire was the employer in whose employment the employee was exposed to repetitive motion activities prior to evidence of disability (missing time from work and filing the actual claim for compensation), the subsequent three employers were not liable.

Second: SystemAire denied both medical and TTD benefits and, therefore, lost control of the medical care. Claimant was then allowed to treat with any physicians he chose to treat with, and SystemAire was eventually ordered to pay for that unauthorized medical care, plus unpaid TTD, amounting to over $400,000 – – plus lifetime liability for PTD benefits in the future.

WHAT TO REMEMBER FROM THIS AWARD

Remember that the “last employer” means the last employer prior to evidence of disability – – not merely the last company that employs the claimant. If a claimant misses time from work or files his claim while working for you or your employer, subsequent employers MAY not have liability….depending on the facts of the claim.

The Commission SHOULD have apportioned some degree of liability to the subsequent employers if there was credible evidence that the ongoing exposure with the subsequent employers worsened claimant’s condition. Whether that evidence was presented at trial is not clear from the Commission’s award.

Also, in the absence of a strong defense with a reasonable likelihood of success, it is sometimes better to pay medical benefits, terminate TTD benefits, and then proceed to a hardship hearing on the issue of compensability or liability rather wait a prolonged period of time and racking up an enormous amount of unpaid benefits. That way, even if the Employer/Insurer lose on the asserted legal defense, the Employer/Insurer do not lose control of the medical care.

I anticipate that this Commission decision will be appealed to the Court of Appeals. I will update you further if the Court of Appeals modifies this award.

If you would like to discuss how this decision might apply to any specific cases you are currently handling, please let me know.