Monday, January 26, 2015

Climbing steps a lot supports knee disability claim

Claimant, 64,  is a former career-employee with bad knees that required bilateral knee replacements.  The Commission affirmed an award of benefits because he used steps a lot at work.  Tarpeo v New World Pasta, 2015 MO WCLR Lexis 4 (Jan 15, 2015).

The parties agreed that claimant used steps daily to perform his job duties as a pasta pressman. The employer's expert, the only knee surgeon to testify in the case,  found the prevailing cause in claimant's condition was degenerative arthritis and weight.   The employer contends the employee over-estimated how many times he used steps and his knees were bad because he was old.

The claimant's father died 40 years earlier. Dr. Rende indicated claimant's father had arthritis.  Dr. Rende  stated his opinion that OA was age related did not change even absent that genetic history.  The ALJ  rejected the genetics defense because claimant denied his father had arthritis.  The ALJ also noted that the employer over-relied on an opinion in the treating records that the condition was not work related and faults the employer for not deposing the treating physician. The physician does not indicate the full basis for his conclusions, and the conclusion disputing causation according to the ALJ could have been "predicated on a desire to have his medical bills paid by Claimant's personal health insurance company, so he could provide the needed treatment to Claimant, since it was not being accepted by the Workers' Compensation insurer."  

Claimant testified he climbed steps several times an hour.  The ALJ found 2880 stairs per week  over 35 years was extensive.  The ALJ based his causation opinion on the conclusions of a non-treating hand surgeon and awarded more than $150,000 including temporary and permanent disability.  

The ALJ found claimant was PTD but not from the last accident alone, and that claimant failed to introduce sufficient medical evidence to show his English deficiency or other prior conditions flowed from permanent medical conditions. 

ALJ Ottenad
Atty:  Hoener, Hendershot, Frazier
Experts:  Schlafly, Rende

Com'n rejects credit for group payments based on insuffient proof

A 59-year old claimant hurt his dominant  arm in 2009 when a boulder rolled down a hill and struck him resulting in multiple injuries to his biceps, elbow, and wrist.  Gamble v Chester Bros Construction, 2015 Mo WCLR Lexis 3. (Jan 15, 2015)

The employer disputed the accident caused some of the treated medical conditions related to the arm , disputed an award of disability benefits when claimant reported he had performed odd jobs, and disputed liability for medical paid through a group plan.    The ALJ awarded more than $150,000 in benefits for 60% of the arm at the shoulder, open medical, past disability benefits related to disputed medical conditions.

The Commission affirmed a finding that the employer was not entitled to any credit for benefits paid under its group plan.  Section 287.270, RSMo, states, in part: "No savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder".
The employer argued that it paid 100% of the health insurance and is entitled to a credit as it is a benefit derived from the employer.  The Commission declined to reach the merits of the defense and found that the employer's own expert failed to show the plan was fully subsidized or that liability was extinguished because the witness conceded a possibility of a subrogation claim.   "We need not address the question whether payments from a fully subsidized health insurance plan may be deemed "benefits derived from the employer" for purposes of § 287.270."  The employer's witness did not  provide unequivocal testimony who was responsible for premiums or for other associated costs such as copays and deductibles or whether the carrier could assert a subrogation interest. 

The ALJ awarded about 1 1/2 years in back disability benefits.  The Commission found sporadic work which sometimes paid $300 a week from an acquaintance was not obtained in the open labor market did not warrant reversing the award.

The initial medical records reportedly documented elbow pain.  No contemporaneous imaging had been performed of the elbow to show the presence of absence of acute changes. "Dr. Brown pointed to what he characterized as an absence of contemporaneous elbow complaints around the time of the accident, but he conceded on cross-examination that the emergency room records from the date of the injury recorded a history of right elbow pain."  Dr. Brown conceded that a disputed surgery was "accepted" form of treatment although he personally regarded it as aggressive.  The ALJ awarded the surgery but found that pre-existing conditions also contributed to the need for the procedure. 

The employer asked the court to require the claimant to reimburse it for a court reporter charge due to a non-appearance.  The ALJ denied this request based a finding of no factual or legal basis.

ALJ  Dierkes
Atty:  Gerritzen, McManus
Experts:  Schlafly, Brown
Treater:  Strege

Friday, January 23, 2015

Bright lights not found to be cause of headaches

In an unemployment case, claimant failed to prove he resigned with good cause on the basis and newly-installed bright lights caused headaches.  Martin v Division of Employment Security, 2015 MO App. Lexis 49 (Jan 20, 2015). 

The court of appeals affirmed a Commission finding that causation between lights and headaches and eye strain was supported by claimant's testimony because the connection was not within the common knowledge and experience of a lay person.  The employer offered an opinion from an engineer that the lighting was in spec.  Claimant could not rely upon the sudden onset doctrine which requires a physical injury.  A dissent argued that any lay person could figure out that improper lighting (too light or too low) could produce the alleged symptoms and that sudden onset doctrine supported causation even in the absence of physical injury. 

Older worker becomes depressed after hurting her shoulder

The Commission affirmed a PTD award against the employer for a shoulder injury that was worsened by psychological symptoms.  McDonald v Midland Radio Corp., 2014 Mo WCLR Lexis 148 (December 30, 2014).

The case involved an undisputed accident in which a 64 year unskilled worker fell over some boxes and landed on her outstretched arms.  She underwent an acroiomoplasty and further injections for myofascial symptoms and asserts she was unable to lift more than 10 pounds.  She had no treatment until a second similar fall at work about a month later.  She obtained treatment for depression and anxiety and developed "psychological restrictions."

The employer argued that any total was the SIF problem.  Any disability flowed in part from the second accident because claimant received treatment after the last accident.  The Commission dismissed the argument as specious because the employer exercised a 'disregard of its duties'  for 'no apparent reason' by denying or delaying treatment after the first accident.  The treating physician  in a report had apportioned disability between the two accidents without explanation.  The ALJ "disregarded" opinions of a psychiatric expert who felt claimant had an inner drive to remain disabled.  Claimant contends she had crying spells only after her work injury and the ALJ found  this was a major consideration in her claim for PTD.

ALJ Miener
Atty:  Spoonr, Naughtin
Experts:  Koprivica, Hill, Titterington, Rhodes
Treater:  Hughes


SOL allows re-filed SIF claim within 1 year of settlement

Couch v Mo Dept. of Corrections, 2014 MO WCLR Lexis 146, 147  (December 30, 2014) was a appeal of two partial awards against the SIF  that challenged the previous interpretation before reform that that allowed extending the statute of limitations for filing Fund cases for within 1 year after a settlement against the employer. 

The Commission affirmed a denial of the defense and asserted that the prior interpretation did not have to change because of post-reform strict construction.  The rule was  no based on pre-reform liberal construction but instead was based on what  plain and ordinary meaning construction.

Couch involved unusual facts in which the employee filed a timely claim, settled the case against the employer with a provision to dismiss the fund, and then re-filed against the fund within 1 year of the settlement.    "The decision in Treasurer v Cook, 323 S.W.3d (Mo W.D. 2010) rests on the distinction between a "claim" and a "claim for compensation", noting that the term "claim" is used in Section 287.430, referring to the time bar of Second Injury Fund claims. The court then goes on to say that for purposes of determining timeliness of Second Injury Fund benefit filing a settlement between the claimant and the employer/insurer constitutes a claim."

The case turns on the definition of a claim and finds it can have multiple definitions for SIF purposes.

This still may come as  a surprise to some that after agreeing to dismiss  a SIF claim the claimant can still come back another day and file a second claim.  The state-issued "form" indicates when the case is settled against the employer that the claimant also stipulates to release the SIF from all liability.  The form does not recite whether this release is with or without prejudice or recite any consideration provided by the SIF for such a release.  Civil rules generally allow a right of non-suit without prejudice before submission. There is no indication n the opinion that the SIF provided any consideration for the dismissal or was prejudiced.  In fact, there is no record that the SIF provided any medical defense of the case.   Claimant relied upon her expert testimony that her new hand injury synergistically combined with a prior anxiety caused by a supervisor previously "harassing" her by wanting a "relationship." 

ALJ  Fischer
Atty Kiefer
Expert:  Cohen

Tuesday, January 20, 2015

Missouri skips the light fandango denying comp drug penalty

              The Commission affirmed a denial of a Hail Mary anti-drug policy defense to a permanent total claim involving a 57-year old worker who tripped while descending a ladder and required a hip replacement. Hertzing v Beck Motors, 2015 Mo WLR Lexis 2 (January 9, 2015)

                The employer introduced a drug test which suggested recent cocaine use and had a toxicologist testify that the worker likely used cocaine within a day or two of the accident.    The employer had an unambiguous anti-drug policy.
          So what went wrong?

            Missouri provides where the employee fails to obey any rule or policy adopted by the employer related to a drug-free workplace or the use of alcohol or non-prescribed drugs in the workplace, the compensation and death benefits provided for herein shall be reduced 50% if the injury was sustained in conjunction with the use of alcohol or non-prescribed drugs. 

The ALJ concluded because the employer failed to show that claimant violated any policy of the employer and that the evidence did not establish his injury was sustained in conjunction in use with drugs.

                The drug free work policy permitted one test but shifted the burden to the claimant to request a confirmatory test. The employer nor the lab notified the employee timely of the positive drug test nor provided a sample.   As the employer’s procedures allowed the employee an opportunity to challenge the results and independently test the sample, the employer could not invoke the policy.  The employer became aware of the positive drug test on June 22, 2009 and did not disclose the results to the employee until 46 months later.  When the worker asked for a sample, the employer failed to produce it.  

                The employer’s expert further failed to convince the ALJ that the accident falling off the bottom rungs of a ladder was in conjunction with drug use.  Claimant denied drug use.  There were no corroborating witnesses of drug like behavior.  The toxicologist indicated that he could not say it was in conjunction with the accident or affecting the worker’s brain or nervous system and could only conclude the exposure was likely a day or two before the accident. He indicated that a blood test, rather than urine, was the proper standard to evaluate drug impairment.

                The Commission noted the drug screen by its own description was non-forensic, which the commission concluded meant it was not suitable for use in courts.  The employer offered no additional testimony to establish any foundation regarding chain of custody.

                The Commission then jumps the shark.  “It would appear that the record lacks any evidence from which we could find that employee failed to obey employer’s rule or policy related to a drug-free workplace.”  The Commission concludes the policy only prohibited the presence of illegal drugs and not the “presence of inactive metabolites associate with the use of such drugs.” (benzolecgoine).

So what are the most important take aways?

From the risk management perspective, it makes little sense to have drug testing policy that does not produce tests of forensic quality.  Any case worth testing is worth a confirmatory test with proper controls for chain of custody. Employment decisions made on incomplete drug tests may represent a greater hazard to an employer than having no policy for drug testing at all.

The employer has a duty to comply with its own procedural requirements established in its drug-free work place policy.  The ALJ found the employer did not comply with its own policies, and found a duty to notify the worker of the result and provide a sample upon request as its own policy allowed for re-testing.   

A defense based on reliable forensic testing should be asserted early and applied against benefits prior to an award.  The final award sough the credit against past and future benefits in a hearing about 5 years after the accident. This reduction of benefits sometimes is not done because it may force a temporary award.  The ALJ’s award suggests a perception of fundamental unfairness from nondisclosure, even though there is no “rule” requiring disclosure of a drug test in a statement demand or a “rule” requiring all potential defenses pled in the initial answer. 

           While the ALJ indirectly faults the defense for hiding the ball the real problem here is procedural weaknesses in the employer’s own drug policy before the accident occurred. 

           Don’t forget this fact, you can’t get it back.

           The decision portrays the defense as a Hail Mary move which was not raised for 4 years.  The employer provided more than $100,000 in medical and TTD benefits over several years.  The employer asserted that the last accident did not total claimant and any incapacity to work flowed from prior multiple orthopedic and cardiac impairments.  Claimant asserted total alternately against the employer or SIF. The ALJ found the employer alone liable for the PTD, although conceded the expert testimony was “phrased somewhat awkwardly.”   She found that claimant quit work because of pain, a repeated error noted by the Commission because claimant stated he resigned because he qualified for social security.

           The award included prior TPD benefits based on claimant’s “non-specific” testimony that he could only tolerate working partial days.  The commission noted proof of TPD requires proof of diminished earning capacity and did not require the employee to “prove his actual earnings during the relevant time periods.”   

            The 31-page decision includes meticulous fact finding with more than 100 footnotes and even observations that there is a one penny discrepancy in the computation rate.  The Commission issued a separate opinion to highlight what it considered to be typos in the award among other findings.  The employer was defended by a former administrative law judge.  

ALJ Ruth
Atty:  Barnes, Murphy
Experts:  Fevurly, Carr, Eldred, Cordray

Friday, January 16, 2015

Public toilets are a unique work hazard

If a Missouri worker gets injured using a public  toilet does she get comp benefits?  The answer is:  at least some of the time, according to the latest report from the Commission in a case affirming benefits in a temporary award.  Eberhard v G4S/Walkenhut,  2015 Mo WCLR Lexis 1 (January 7, 2015).

The employee did multi-state surveillance work and was watching a person's home near Sikeston, Missouri in 2011.  She stopped at a McDonald's bathroom before going home to St. Charles and when she used a bathroom and "upon completion"  the toilet paper dispenser became partially dislodged from the wall.  She claims she "screamed" and "passed out."  She promptly took pictures of bruising and sent it to her supervisor.  She states as a result of the accident that her ears "buzzed" and she developed a whiplash, tingling arms and double vision.    When the employer-designated doctor released her, she obtained further treatment on her own for her shoulder, thoracic outlet syndrome and  other conditions.   She claims her shoulder is "horrible" and an expert concluded she may ultimately require surgery.

The ALJ in a May 2014 temporary award found that claimant's accident arose in the course of her employment because she was a traveling employee and she was being paid for her time and travel expenses and not engaged on a personal errand.   The ALJ accepted the opinion of claimant's expert, a shoulder surgeon, over other competing expert opinions, that her shoulder disability flowed from her accident and ordered the employer to provide treatment.   Claimant denied any prior symptoms.   Claimant was employed at the time as a claims adjustor and TTD was apparently not an issue while the case went on appeal.

 The employer appealed and asserted that the ALJ did not specifically analyze the facts of the case to show that the risk was related to employment and was an equal exposure to non-employment life. The employer stopped providing treatment after Feb. 2012 based on two medical opinions that any need for treatment for her shoulder bursitis did not flow from the accident. The employer objected that the claim did not make sense medically nor did claimant identify a unique occupational risk.  The commission in a supplemental opinion found  that claimant's work on the road creating a unique occupational hazard to use public restrooms and that public restrooms had a higher risk of unknown maintenance problems.

The commission noted that because the claimant's job requires travel she must use public restrooms, she must use them more frequently, and public restrooms have a higher risk of hidden dangers from the wear and tear of public use.  "The duties of employee's work for employer effectively necessitated an increased reliance upon the use of such facilities" even when she elected to chose facilities that were generally well-maintained (such as McDonalds).  "We find that employee's work for employer exposed her to a greater frequency of using public restrooms,  and the risks and hazards attendant thereto..." 

The Commission finds the real issue is not that the worker uses public bathrooms but how often she uses them when on the clock.   The Commission's analysis does not explain  why this factual distinction has anything to do with why the dispenser itself failed or that the dispenser itself is somehow different than other dispensers in private facilities.  One obvious answer  to support the award is that private household bathrooms have fundamentally different ways of dispensing toilet paper that don't involve 30-pound contraptions.   Instead, the Commission is focused on something else entirely.  Judicial notice is allowed at the court's own discretion when a fact is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.    Restaurants are crowded.  People flush a lot.  Things break down.  These truths they hold  as self evident.  It's no wonder that speeding ambulances are not filled with this problem  every day.  While this may be self-evident to the Commission, there is nothing in the record to show this freak accident had ever occurred in the history of mankind.   To the contrary, a busy restaurant means more regular maintenance which mitigates the whole premise that busy means the worker is inherently at higher risk  to be attacked by a dislodge dispenser.   The absence of any expert on risk analysis is not a bar to compensation. 

While the Commission for years has chastised employers for counting widgets to evaluate  repetitive trauma exposure this is a new era in which counting occupational and non-occupational flushes is the key to any "equal" exposure defense. It is a common flaw not to have specific evidence comparing occupational and non-occupational exposure   The employer asserted claimant also had public toilet exposure outside her capacity as a worker.

An important distinction in this case is that the worker identified a hazard as a cause of her injuries and there was no dispute that she had at least some initial trauma even though its relationship to her subsequent symptoms was disputed by the experts.  The worker here is not only prepared, but trained by her employer to take pictures.

The employer also appealed causation based on the credibility determination of competing experts.   Such appeals are notoriously difficult particularly in these circumstances when the expert is well-known and has decades of medical credentials even when the symptoms are atypical or weird.
The employer did convince the commission that the first award was incomplete  and that more information was important to explain the award.  The Commission then provided further explanation to flush the appeal.  

Atty:  Christianson, Leahy
Experts:  Emanuel, Rabenold
Treater: Breeden