Tuesday, July 12, 2016

Gov. Nixon balks at Daubert standard

Gov Nixon has refused to sign  Senate bill 591 which would impose Daubert standards leaving Missouri as one a small minority of states not to follow the federal rule regarding admission of evidence and instead relies upon 490.065.

Senate bill 490.065 provides:

An expert witness may testify in a court proceeding if the expert has specialized knowledge that will help the trier of fact understand the evidence, the testimony is based on sufficient facts and the product of reliable principles, and if the expert has reliably applied such principles to the facts of the case.
An expert may base an opinion on facts in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts in forming an opinion, the facts need not be admissible for the opinion to be admitted. If the facts would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value outweighs their prejudicial effect. An expert witness shall not testify on the defendant's mental state which constitutes an element of the crime. An expert witness may state an opinion without first testifying to the underlying facts, but may be required to do so on cross-examination.

Nixon criticized the reform  as "misguided"  pretext to get rid of junk science and instead targets injured litigants from being "justly" compensated. 


Friday, July 1, 2016

Split Supreme court awards bills on hypertensive event.

In Malam v Department of Corrections, 2016 Mo. Lexis 210 (Mo 2016) (June 28, 2016) the Supreme Court reversed a denial of benefits in a divided 4-3 opinion that claimant failed to prove his accident was the prevailing factor in his medical condition and disability because the expert opinion was ambiguous.

Claimant, 50,  went into a state of hypertensive crisis shortly after controlling an unruly prisoner.  Dr. Woods, his treating physician, concluded that trauma likely precipitated the medical process.  Claimant had a minor external injury to his knee.  He apparently lapsed into a coma and ultimately underwent a cardiac cath. 

His employer, the state of Missouri, disputed the medical bills which exceeded $138,000 and he pursued benefits under comp. At the time of Claimant's reimbursement request, Employer/insurer had already paid $6,085.46 in medical aid for Claimant, and Claimant had also received $2,284.95 in temporary disability benefits.  The claimant did not ask the ALJ to award  any permanent disability benefits.

The state defended the case on expert opinion that claimant's condition arose from pre-existing medical problems including  a complex medical history in which he was previously hospitalized for congestive heart failure, hypertension, primary cardiomyopathy, pulmonary hypertension, left ventricular dysfunction, biventricular failure, and morbid obesity. The Commission affirmed claimant established an accident but not an injury by accident which was the prevailing factor in his medical condition and disability.  The commission did not adopt the conclusion of the defense expert.
The employee relied upon an opinion of Dr. Koprivica who found that the prevailing factor precipitating the specific event" . The expert erroneously  based his conclusion on a medical history in his report inconsistent with other records that claimant was involved in a high level of exertion wrestling the prisoner.  The accident involved minimal physical exertion and a claim in part that emotional stimuli caused claimant's hypertensive crisis.

The Commission denied benefits and  found that Dr. Koprivica provided ambiguous conclusions that the accident was precipitating (non-compensable under the statute) and the prevailing factor (compensable under the statute). 

Section 287.020.3(1) provides that "[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." A "prevailing factor" is "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

The court noted that the Commission decides credibility between competing experts and in this case it did not say that Dr. Koprivica's  conclusion lacked credibility, or that it was too conclusory to be credible, but that it was merely  confusing.  The court found the conclusion that the opinion was equivocal was not supported by the evidence because the interpretation of evidence was "overly technical."

A dissent argued that the court had a more  limited standard of review to disturb the finding of the commission, and there was not "overwhelming" evidence to show the Commission concluded there was insufficient medical evidence to prove entitlement to benefits.  The dissent noted that Dr. Koprivica was an "experienced expert" and could have expressly stated the event was the prevailing factor if that was his opinion.  Essentially, Dr. Koprivica did not really  conclude medical causation based on prevailing factor because he didn't say it. 

The majority appears to undermine statutory reform which imposed a higher standard of "prevailing factor" by allowing testimony on its face  describing causation based on  "precipitating factor."    What the court appears to say, however, is that the court  construes expert opinion of prevailing factor to support an award  based on the totality of the report even when the opinion is not articulated precisely with the statutory magic words or in a somewhat muddled fashion as in this case which uses both prevailing and precipitating factor.   This is a reminder that there are two separate standards and that reform required strict interpretation for statutory language but did not impose the same burden on interpretation of words in expert testimony.  A claimant still has the burden to show prevailing factor and evidence based on precipitating factor alone is insufficient.

The commission could have denied benefits by adopting the opinion of the defense expert or found that Dr. Koprivica was not credible.  There were many opportunities to show flaws in Dr. Koprivica's conclusions such as being based on an erroneous history or being too conclusory without any medical explanation why minimal use of force would be the dominant reason to explain his hypertensive crisis. .

The ALJ originally found claimant failed to prove an accident.  Dr. Koprivica's opinion was offered as a report and not as live testimony.  2014 MO WCLR Lexis 125.  "Dr. Koprivica does not explain, in his report, what he meant by the foregoing phraseology, and he was not deposed, so we are left with a causation opinion that is, at best, equivocal with regard to whether the accident was the prevailing factor causing both the resulting hypertensive crisis and disability."  The only issues at hearing were:

"1. Whether the claimant sustained an accident which arose out of the course and scope of employment.
2. Whether the accident was the prevailing factor which caused the injuries and disabilities for which benefits are being claimed.
3. Whether the employer is obligated to pay past medical expenses.
4. Direct Pay Medical Fee Dispute filed by L.E. Cox Medical Centers.'

The Commission found claimant had an accident but failed to prove prevailing factor.

The court of appeals affirmed the Commission in a divided opinion that claimant failed to prove prevailing factor.   2015 MO App. Lexis 683 (Mo. App. 2015) (June 24, 2015). In that case the claimant alleged the Commission  "over-looked" evidence that claimant's prior medical conditions were controlled and he never had a similar hypertensive episode in the past.  The court found that the opinion from Dr Koprivica was conclusory, that the Commission could have given it less evidentiary weight to find claimant failed to prove his case with substantial medical evidence.  The court found that claimant had to establish a medical condition (hypertensive) and that the need for treatment did not automatically become compensable because claimant established he had an accident.  A dissent found the commission misapplied the law that the expert opinion did not meet the statutory standard and the expert minimized the role of pre-existing conditions. 

The case clearly shows the peril of either side proceeding when an expert opinion does not articulate the statutory standard and is open to mixed interpretation.   The plaintiff in the case was found to fail to submit a prima facie case on the medical evidence by the ALJ, the commission and the court of appeals.  The defense acted at its peril by not challenging the report on its admissibility or assuming the report was sufficiently ambiguous and electing not to cross examine  the expert. 

The case is ultimately about a hospital chasing after a prison employee to pay a  substantial hospital bill.   It is not clear why the state group insurance did not pick up the charges.   The case is silent if there was no source to pay the bill or if the bill had already been paid at the time of the hearing. 

Thursday, June 30, 2016

Affililated corporation liable as third party for wrongful death claim

The court of appeals reversed a dismissal of a common law negligence claim against ASC and found the pleadings sufficient to support a duty owed to the plaintiff.  Berliner v Milwaukee Electric Tool, etal, ED 103507 (Mo. App. 2016) (6/30/2016).

The case involves a death on the job when a worker fell from a 85-foot high platform in Labadie, Missouri.  The plaintiff, the surviving husband, filed a wrongful death suit.  Plaintiff sued Milwaukee, Ameren Service Company (ASC), The court granted a motion to dismiss against individual employees. 

The court noted that despite corporate ties between ASC and Union Electric immunity under worker's compensation law applies only to the immediate employer and not to affiliated parent, subsidiary or sibling corporation.  The plaintiff worked for Union Electric. 

"It is totally incongruous and patently unjust to permit the parent to hide behind the shield of separate corporate identity when advantageous, but to disavow such separateness when it is not."  The court noted that ASC was a separate corporation and misconstrued the nondelegable obligation to provide a safe work place by the employer insulated third parties from liability.  The co-employee defense, similarly,  did not extent to third parties such as ASC which was reportedly hired to oversee safety at Ameren's plant.   
The pleadings were  sufficient as alleged to state a cause of action for negligence:

"ASC was responsible for and oversaw the safety at Union Electric’s plant. Its responsibilities included, but were not limited to, inspecting, refurbishing, and maintaining the hammer drill used by Decedent when she fell from Union Electric’s 85-foot-high platform. It was also alleged that the platform itself was subject to maintenance and inspection by ASC, which was tasked with ensuring "that all railings on the platform were safe, free from dangerous conditions, unbent or undamaged, and free from dangerous gaps between such railings."


Monday, June 27, 2016

Prankster denied benefits for starting fire

The Commission denies benefits to a person who burned himself after he intentionally lit a can of industrial adhesive on fire to startle to co-worker.  The injury did not flow from a risk associated with his employment.   Hedrick v Big O-Tires, 2016 MO WCLR Lexis 34 (June 22, 2016)

The parties stipulated the prank involved substantial injuries representing 45% disability of the body and involved disputed medical costs of $261,173.  The claimant  lapsed into a coma  and woke up in the hospital with no memory of the event.

The administrative law judge found that  the employer accepted horseplay on its premises, including a variety of "silly" behavior such as "greasing door knobs, blowing air at an employee in the bathroom, snapping a rag in an employee's direction and placing  inappropriate objects in a co-worker's toolbox."  The administrative law judge, however,  found the claimant  "failed to demonstrate a causal connection between the duties of his employment at Big O Tires and intentionally lighting a can of glue held in a co-worker's hand on fire with a lighter. Mr. Hedrick himself testified that there was no function of his employment at Big O Tires that involved setting a can of glue on fire."

The 2-1 Commission affirmed a denial  benefits.  It noted "the risk bears almost no relation to the employment whatsoever. Any employee can choose to mishandle or misuse dangerous materials in such a way as to introduce new risks and hazards into the workplace; but this choice, standing alone, is insufficient to implicate workers' compensation liability for consequent injuries sustained by such an employee."   The presence of dangerous materials, a tolerance of mild horse play, did not make playing with dangerous materials a risk associated with employment. 

The Commission noted the co-worker burned in  the event was entitled to benefits because it arose from an unprovoked and neutral assault. 

The dissent argued that when an employer allows "rampant" horseplay and that injuries are compensable and related to a work risk whether or not the horseplay in the past involved "potentially dangerous" horseplay.  The dissent asserted that claimant's only burden was to show a risk of potentially dangerous employee related to employment, relying upon  Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010),.

The commission noted: "the administrative law judge interposed an additional issue that the parties did not specifically identify--whether employee's injuries arose out of and in the course of the employment--and ultimately denied employee's claim based upon a conclusion that employee failed to meet his burden of proof." The parties briefed the issued without further clarification whether the parties intended the "arising out of issue"  to be within the original stipulated issues.

ALJ  Fischer

Temporary benefits awarded for worker with chronic cuff tear

In Stieferman v Optima Graphics, 2016 Mo. WCLR Lexis 32 (June 20, 2016) , claimant tripped over a roll of fabric and injured her shoulder in April 2014.  Claimant had a similar injury a few weeks later when she returned to work. 

Dr. Hobbs testified that claimant had chronic shoulder pathology with retraction and atrophy, and that falls can aggravate degenerative conditions. 

Dr. Emanuel testified that the accident caused an acute tear on a prior asymptomatic full thickness tear. 

The employer contends there is no new disability and no new medical condition.  The ALJ found the accident increased the size of the tear, and accepted the opinion of claimant's expert.  The doctors disagreed regarding how soon retraction can occur, the role of fatty infiltrates, and how long it takes the humeral head to migrate.   The ALJ noted that Dr. Emanuel had more extensive surgical experience which added to his credibility.

The ALJ found claimant's first accident to be the cause of her need for treatment, and denied liability on the second claim.   2016 Mo WCLR Lexis 33. 

ALJ Carlisle
Atty:  Korte, Welz

Commission modifies SIF award to allow total benefits

In Hacker v Texas Book Company, 2016 MO WCLR Lexis 31 (June 20,2016) the claimant alleges he hurt his spine and shoulder throwing some boxes.  The claimant pursued a claim for total disability benefits against the Second Injury Fund as a result of multiple prior orthopedic conditions including "failed" neck and back surgeries.  The Commission modified the award from permanent partial to permanent total disability benefits against the Fund.

The ALJ found on the basis of claimant's prior conditions he had more than 90% pre-existing disability.  The Commission found the determinative issue was not whether claimant was physically capable of performing work but whether he was capable of competing in the open labor market.  The Commission found that an expert  opinion that claimant was not capable of competing in the open labor market from his non-treating expert satisfied this burden without further vocational opinion.  Claimant had returned to work, but the Commission concluded the job was not obtained in the "open" labor market. 

ALJ:  Dierkes
Atty:  Allen
Experts: Volarich

Tuesday, June 14, 2016

Court rejects "similarly situated" standard for stress claims

Prior to reform in 2005, a worker who claims work-related stress had  to prove that the stress was extraordinary and unusual based on objective standards and actual events compared  to similarly situated employees.. Williams v DePaul, 996 S.W.2d 619 (Mo. App. 1999)  had the effect of making it harder for workers  to prove stress claims when the nature of the job was inherently stressful in the absence of some experience that was truly unexpected or unusual.  Mantia v Mo Dept of Transportation, ED 103016 (Mo. App. 2016) (June 14, 2016), has now reversed Williams and finds the legislature when it threw out liberal construction  really wanted to make it easier to prove stress claims. 
Mantia was a state employee who claims her job caused PTSD.   She filed a claim in 2008.   The fight was an issue of statutory interpretation.  Both experts agreed that she had a mental problem from work but disagreed on what to call it and how much disability it represented.   There was uncontested  proof that she experienced extraordinary or unusual conditions dealing with accidents scenes and catastrophic injuries. the Commission did not find such experiences spread over a 20 year career was any different from a similarly situated highway worker.

The court found sufficient evidence that claimant sustained an occupational disease and affirmed an award of 50% disability with open medical.    MoDot contends that claimant failed to establish an occupational disease because she did not introduce evidence of extraordinary stress compared to similarly situated employees. 

The court noted that 287.120.8 requires “objective” standards, it does not define what it means by that term, and finds the statute does not “unambiguously” compel the use of “similarly situated employees”, a standard that Williams derived from other states.   The court further notes that 287.020.10 abrogated prior holdings and it was forbidden to use the old standard. 

The court found that described uncontested verifiable events were extraordinary.  Neither expert questioned causation.  The Court deferred to the Commission’s finding of fact regarding allocation of disability.   The court found evidence in MoDot’s own expert’s opinions to support open medical.  
In the Commission case,  2015 MO WCLR Lexis 39, the Commission found that claimant had established she had a  major depressive disorder, rejected her claim that she was totally disabled and her expert’s assertion that she had PTSD.    The commission noted that neither expert was particularly persuasive.  Claimant began treating in 2008, and treating physicians did not identify any causation between her condition and her work.

In 2005 reformers imposed “strict” construction rather liberal construction.  This change has had many unintended consequences in which appellate courts  expanded benefits rather than contracting them.  Mantia  finds the legislature somehow intended to abrogate Williams without identifying  Williams  in 287.020.10 when other cases were expressly abrogated. . The court of appeals reached a completely opposite interpretation of 287.020.10  in Wright v Treasurer of MO, 484 S.W.3d 56 (Mo. 2015) as a rationale to preserve the personal comfort doctrine. 

Mantia now enables great access to benefits in jobs that are inherently stressful.  This shift the focus of “objective” standard to look at the inciting cause and not other employees.    Mantia may be easily distinguishable on its facts from stress cases in the future because of the unusual nature of the factual allegations. It is a warning to employers that litigating claims may result in high awards when causation is not contested even when the course of treatment is short (the case litigated for 8 years, claimant saw a doctor less than 2 years)  and the documentation of a work connected problem  in the medical  file is "thin."