Missouri Employers Now Potentially Liable for Increased Workers’ Compensation Liability

In a recent worker’s compensation decision, the Missouri Supreme Court has increased protections for workers in the state and greatly expanded potential employer liability. In Greer v. Sysco Food Services, et al.,¹ the high court in Missouri affirmed a decision by the Labor and Industrial Relations Commission which decided that employees could receive temporary workers’ compensation benefits for a period of time—perhaps even years—after certain injury claims have been settled. The Supreme Court further delineated a new standard for assessing the termination date for temporary total disability benefits. Previously, and employer could terminate such benefits once the claimant reached “maximum medical improvement.” Now, the benefits must be paid up until the time the injured worker is no longer engaged in the “appropriate and necessary rehabilitative process.”

The plaintiff, Carl Greer, a long-time employee at Sysco Food Services, was injured in a forklift accident ten years ago when his foot and ankle were run over by a coworker. Sysco Food Services did not contest that his injuries were work related and Greer was awarded temporary total disability benefits. Following treatment in February 2007 and an initial diagnosis of tarsal tunnel syndrome, Greer was released to full duty in March 2007. During his return to work, Greer experienced persistent difficulty performing his duties and reentered treatment. In April 2007, the same doctor determined he had achieved maximum medical improvement, which included a five percent permanent partial disability of his ankle, and he reaffirmed his diagnosis of Greer: tarsal tunnel syndrome. The doctor indicated that he did not believe Greer’s injuries could improve any further. At that point, temporary total disability benefits were severed because they were not allowed once a claimant reaches maximum medical improvement.

Greer was treated for his tarsal tunnel syndrome in July 2007 by a different doctor and in November 2007—still continuing in treatment at his own expense—Greer resigned his employment due to his inability to perform his job functions. Greer’s pain remained, however, and five separate doctors diagnosed him with tarsal tunnel syndrome between 2007 and 2009. He continued to participate in physical therapy throughout that time period, and he eventually underwent surgery in June 2010. After continuing in additional post-surgery treatment, Greer filed an amended claim for workers’ compensation benefits in March 2013 where he sought an award of additional temporary total disability benefits.

As an alternative to the temporary disability benefits and as part of his amended claim, Greer argued that his injury resulted in permanent total disability and he should receive the commensurate benefits. “Total disability” is defined as the “inability to return to any employment” and does not mean the “inability to return to the employment in which the employee was engaged at the time of the accident.”²  To determine whether a worker’s injury qualifies as a total disability, the worker must show that, given his present condition, an employer would not reasonably be expected to hire him on the open labor market.³  The Supreme Court affirmed the Labor and Industrial Relations Commission’s decision that Greer was not entitled to permanent total disability benefits, primarily because he was capable of working sedentary jobs which required little exertion. Moreover, Greer was capable of finding “jobs available in the open market for which [he was] qualified.”⁴

Greer’s paramount argument was that temporary total disability benefits should not have been terminated at the time it was declared he had achieved maximum medical improvement. The crux of his argument on this point was that the standard “maximum medical improvement”—long considered the benchmark for determining when temporary disability benefits conclude⁵—is not found within the workers’ compensation law, which is to be strictly construed.⁶  Rather, it was coined in a case interpreting the end date for temporary total disability benefits⁷ and should be considered a factor, just not the deciding one. The actual workers’ compensation provision states that “[t]emporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process.”⁸  Further, “[t]he permanency of the employee’s disability shall not be established, determined or adjudicated while the employee is participating in rehabilitation services.”⁹  The temporary award is not, though, “intended to encompass disability after the condition has reached the point where further progress is not expected.”¹⁰  An employer’s obligation to pay temporary total disability benefits shall additionally not extend beyond “400 weeks during the continuance of such disability.”¹¹  The purpose of that specific provision was to provide the Labor and Industrial Relations Commission sufficient time to evaluate the nature and extent of a claimant’s injuries prior to making a final award while also affording the injured employee compensation in the form of temporary benefits.¹²

The question for the court to answer, then: when did Greer’s disability cease being temporary and became permanent?  On this issue, the Labor and Industrial Relations Commission had opined that “applying a per se rule that [temporary total disability] benefits cannot be awarded after the date of maximum medical improvement works an absurd result.” To assess whether that was the correct answer, the court reviewed the statutory language and applied it to the treatment and rehabilitative efforts of Greer, factual issues that were determined by the Labor and Industrial Relations Commission.

The Court first determined that a maximum medical improvement diagnosis is not a bright-line date to determine whether temporary total disability benefits should be terminated. Rather, it will assist future Labor and Industrial Relations Commissions in determining whether any further medical progress can be reached by an injured claimant, so long as there is “substantial and competent evidence presented that a claimant continues to be engaged in the rehabilitative process beyond a date initially believed to be the end of the rehabilitative process.”¹³  This means that an injured worker receiving temporary disability benefits, who has been told he can no longer improve his disability but who remains in pain and continues to seek medical treatment for that pain, may be granted temporary total disability benefits beyond the time period where the injured party theoretically has achieved maximum medical improvement. Only once the rehabilitation process concludes may the employer seek a determination regarding the permanency of the claimant’s injuries. Or, more likely at that time, the injured party may seek additional temporary disability benefits through an amended workers’ compensation claim.

The court then turned to the rehabilitative efforts undertaken by Greer to decide whether he established substantial and competent evidence that he remained engaged in the rehabilitative process beyond April 2007, the date it was determined he had achieved maximum medical improvement. The court determined Sysco Food Services was aware Greer suffered from tarsal tunnel syndrome since at least February 2007 and that, even though he’d been released to full duty, Sysco was aware Greer continued to experience symptoms of tarsal tunnel syndrome which impacted his ability to work. And, further, at each separate instance where Greer saw a doctor, he was not only diagnosed with tarsal tunnel syndrome, but the associated treatment was specifically designed to rehabilitate that diagnosis—including the surgery in June 2010 and ensuing post-surgery treatment. The court noted, “All of these actions were intended to restore Greer to a condition of health or normal activity by a process of medical rehabilitation.” The court held that Greer was engaged in professionally accepted, medically relevant and prescribed treatment and as such, the award of temporary total disability benefits was affirmed.

The court’s final analysis related to the Labor and Industrial Relation Commission’s decision to award future medical care benefits to Greer because it was reasonably required to cure and relieve Greer from the effects of his work-related injury. An employer is required to provide to an injured employee “such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.”¹⁴  Greer only needed to show that a reasonable probability existed that future treatment is necessary because of his work-related injury.¹⁵  Moreover, future medical benefits cannot be denied merely because an employee reaches maximum medical improvement.¹⁶  The court noted that the members of the Labor and Industrial Relations Commission were in the better position to determine the credibility and veracity of the medical opinions proffered on the issue of future medical care and affirmed their award.

The concept of maximum medical improvement will still assist fact-finders in identifying the point at which the question of permanent disability becomes ripe for determination, but will no longer be the primary basis for determining whether temporary disability benefits shall conclude. Injured workers in Missouri will now be able to receive temporary disability benefits so long as they are continuing necessary, professionally recommended, and medically relevant rehabilitative efforts. It will be interesting to monitor how this ruling may impact other states.

Justin Whitworth is an associate at Graves Garrett in Kansas City. The views set forth herein are the personal views of the author and do not necessarily reflect those of the law firm with which he is associated.

Endnotes

1 Greer v. Sysco Food Services, et al., No. SC94724, (Mo. banc Dec. 8, 2015).

2 Mo. Rev. Stat. § 287.020.6.

3 See Archer v. City of Cameron, 460 S.W.3d 370, 375 (Mo. App. W.D. 2015).

4 Greer, No. SC94724, at *14.

5 See Cardwell v. Treasurer of the State of Missouri, 249 S.W.3d 902, 909 (Mo. App. E.D. 2008); see also Vinson v. Curators of Univ. of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991).

6 Mo. Rev. Stat. § 287.800.1.

7 See Vinson v. Curators of Univ. of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991).

8 Mo. Rev. Stat. § 287.149.1.

9 Mo. Rev. Stat. § 287.149.2.

10 See Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. E.D. 1985).

11 Mo. Rev. Stat. § 287.170.

12 See Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, 239-40 (Mo. App. 1938).

13 Greer, No. SC94724, at *22.

14 Mo. Rev. Stat. § 287.140.1.

15 See Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 180 (Mo. App. E.D. 2014).

16 See Pennewell v. Hannibal Reg’l Hosp., 390 S.W.3d 919, 926 (Mo. App. E.D. 2013).