Case Summary for October 11. 2006

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Case Summary for October 11. 2006

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m., Wednesday, October 11, 2006

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SC87316
United Pharmacal Company of Missouri, Inc. v. Missouri Board of Pharmacy
Cole County
Challenge to application of pharmacy law to retail sale of veterinary drugs

United Pharmacal Company of Missouri, Inc., owns a retail store that sells animal feed and other products. For 20 years, it sold prescription veterinary drugs to consumers with veterinary prescriptions for animal treatment. United Pharmacal does not sell drugs for human use, employ a pharmacist or hold a pharmacy license. In 1994 and 1997, the state's pharmacy board investigated United Pharmacal's sale of prescription veterinary drugs and determined that United Pharmacal was not violating the pharmacy practice act. After a third investigation, the board in June 2001 issued United Pharmacal a cease and desist order, warning that the store needed a pharmacy license to sell veterinary drugs and ordering it to stop selling prescription drugs. United Pharmacal subsequently sued the board in Buchanan County, asking the court to declare that selling prescription veterinary drugs to consumers does not constitute the "practice of pharmacy" under the pharmacy practices act. On appeal, this Court determined Buchanan County was the wrong venue and United Pharmacal should have sued in Cole County. United Pharmacal Company of Missouri, Inc. v. Missouri Board of Pharmacy, 159 S.W.3d 361 (Mo. banc 2005). The Cole County court ultimately determined that the sale of veterinary drugs is the "practice of pharmacy" under the act. United Pharmacal appeals.

United Pharmacal argues it should not be required to hold a pharmacy license because the retail sale of veterinary prescription drugs to consumers with a veterinarian's prescription for use in animals does not constitute the "practice of pharmacy" under the act. It asserts that the general assembly did not intend to give the board authority to regulate such sales of veterinary drugs and contests the trial court's reading of the act. Second, United Pharmacal argues the act is vague and violates the due process clauses of the state and federal constitutions. It contends the act does not advise a person of ordinary intelligence that a pharmacy license is required to sell veterinary drugs, for use in animals, to consumers with a veterinarian's prescription.

The board first responds that the act requires a pharmacy license to sell veterinary prescription drugs. It argues the act properly is read to include all prescription drugs, which the board contends grants it the authority to regulate prescription drugs sold for animal use. Second, the board argues that United Pharmacal's constitutional arguments are not proper in this Court because the company failed to present them to the trial court. Alternatively, the board contends that the act is not void for vagueness because the plain and ordinary meaning of the act's language includes prescription drugs sold for animal use.

SC87689
David Pierce v. BSC, Inc. and Builders' Association Self-Insurers' Fund
Kansas City
Challenge to denial of workers' compensation benefits based on application of the last exposure rule

David Pierce worked as an ironworker from 1988 until 2002. Ironwork involves lifting heavy steel beams, rebar and other building supplies, as well as using heavy, pneumatic tools. In 1989, Pierce injured his right shoulder in a rollover car accident. With treatment, he was able to continue working after the accident. Pierce worked for BSC, Inc., from May 30 to September 25, 2002, including two Kansas City construction jobs. He alleges that, while working for BSC in Kansas City, his shoulder started to hurt, although he did not report the injury formally. After the BSC jobs ended, Pierce worked for another builder for about four months before taking an assembly line job with Ford Motor Company. Pierce alleges that the work for the other builder and for Ford were both much lighter than the heavy labor he performed on the BSC construction jobs. While employed by Ford, Pierce submitted a workers' compensation claim for a repetitive motion injury to his right shoulder and listed BSC as the responsible employer. After an evidentiary hearing, the administrative law judge determined that there was substantial evidence that employment subsequent to the work for BSC aggravated Pierce's shoulder condition. The labor and industrial relations commission denied medical benefits. Pierce appeals.

Pierce argues that BSC exposed him to the hazard that caused his 2002 shoulder injury. He contends the other builder and Ford did not expose him to labor that aggravated the injury. Pierce emphasizes the difference in the type of labor performed for the two construction companies and Ford. He asserts that the work for BSC was the most difficult, heavy labor and was the substantial factor in causing the shoulder injury.

BSC responds that the record includes substantial evidence that Pierce's employment for more than three months and for two different employers included repetitive motion that could have aggravated his injury. BSC argues it is not liable because Pierce was exposed to the risk of the injury for more than three months before filing his claim against BSC.

SC87750
Fred Schoemehl, Deceased, Annette Schoemehl, Appellant v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund
Challenge to discontinuation of payments for total disability after worker's death

Fred Schoemehl injured his left knee in a May 2001 accident while working for Cruiser Country, Inc., and received temporary total disability benefits. When he died in January 2004, his claim against his employer and the second injury fund for permanent and total disability was pending. At the time of his death, which was unrelated to the knee injury, Schoemehl was limited severely by infirmity in his left knee, heart, left shoulder and lower back, according to physician testimony. The labor and industrial relations commission later determined that Schoemehl was permanently and totally disabled as a result of a combination of a work-related injury and pre-existing conditions. His wife, Annette Schoemehl, proceeded with the claim and requested benefits for the rest of her life, eventually settling with Cruiser Country. An administrative law judge heard her claim and denied benefits. The commission affirmed, and Annette Schoemehl appeals.

Schoemehl argues that, under section 287.230.2, RSMo, the second injury fund's liability in a permanent total disability case does not end with the injured worker's death where the death is unrelated to the work injury and the worker has dependents. She contends she is a dependent under the law because she depended on her husband's earnings and disability checks for her daily living expenses. She asserts that other states allow disability payments to continue to dependents in similar circumstances. Schoemehl argues that distinguishing dependents of those who are partially disabled from those who are totally disabled violates equal protection under the state and federal constitutions.

The state responds that workers' compensation is not intended to shift to industry the economic loss to dependents caused by the death of a disabled worker. It argues Schoemehl's rationale is inconsistent with the overall workers' compensation scheme. The state contends that her view potentially would extend greater benefits to the families of those who die from disabilities originating off the job than benefits provided to the dependents of those who die from work-related injuries. Additionally, the state asserts that Schoemehl ignores the fact that permanent partial disabilities are compensated differently than permanent total disabilities. The state further responds that Schoemehl's constitutional claims fail. It argues that dependents do not fall within a protected class and that the government rationally may distinguish between workers who are partially and totally disabled.

SC87789
Eric D. Burns v. Lynn M. Smith
St. Clair County
Challenge to judgment allowing recovery against co-employee in addition to workers' compensation

Kennon Redi-Mix Inc. cement truck driver Eric Burns was injured on the job in April 2000 when a water tank on the cement mixer truck he had been driving exploded. At least a month before the explosion, Burns told his supervisor, Lynn Smith, that the water tank on the truck was leaking. Although he is not a trained welder, Smith welded an area on the salvaged water tank in an attempt to patch the leak. Burns suffered injuries to his hip when the tank exploded as he was re-entering the truck after a stop. Contrary to Kennon's instructions, Burns left the tank in pressurized mode during the stop. His injuries required installation of a pin in his thigh and repeated hip replacement surgeries. He received workers' compensation benefits for his injuries. Burns subsequently sued Smith. The trial court found that Burns was not limited to recovery through workers' compensation. It found that using the truck with the weld-patched water tank was hazardous beyond the usual risks of work as a cement truck driver and that Smith negligently welded the tank, exposing Burns to exceptional hazard. Smith appeals.

Smith argues that Burns' sole remedy is workers' compensation benefits and that he cannot recover from Smith individually. He contends that, as a matter of law, Burns could not establish that driving the truck with the welded water tank was hazardous beyond the usual requirements of employment as a cement truck driver. He asserts that welding a leaky water truck is common practice in the industry. Alternatively, Smith argues that the evidence presented does not support a finding that a reasonable person would have believed welding the water tank and continuing to use it surpassed the ordinary risks of driving a cement truck. Finally, Smith contends the trial court should not have awarded Burns the "windfall" of pre-judgment interest because Burns did not seek interest when he filed suit.

Burns responds that he established the right to sue Smith as a co-employee because the evidence presented to the court supports the finding that a reasonable person would have recognized the hazard posed by the patched water tank. He argues he can recover from Smith because Smith acted affirmatively by welding the salvaged water tank in a way that made Burns' job more dangerous. Finally, Burns defends the award of prejudgment interest by asserting that such an award is within the trial court's discretion. He responds that Smith had actual knowledge that Burns would seek prejudgment interest in the suit.