Wednesday, July 29, 2015

Court affirms award for ankle surgery

The Commission slightly modifies the award of past medical by the cost of two office visits for knee injection for chronic knee pain which were unrelated to claimant's ankle injury, as the claimant concedes he does not seek benefits for the knee, although the Commission notes there may be "some" relationship as claimant limped after his ankle surgery.  Ambrozetes v Smurfit Stone Container Enterprises, 2015 MO WCLR Lexis 75 (July 14, 2015)

The commission affirms the award for an ankle injury including disability and medical benefits.  Claimant in 2009 had some stock fall in him when he was driving a smart car.  Claimant eventually sought care with a podiatrist who recommended surgery for a tendon tear. The employer refused to provide surgery.  The employer relied upon the opinion of Dr. Krause who questioned the need for surgery flowed from the work accident because of the absence of instability noted on exam.  The commission noted that Dr. Krause later conceded in testimony that surgery would still be reasonable due to continued pain complaints and the Commission this testimony resolved any ambiguity.

ALJ Wenman
Atty:  Mobab, Green
Experts:  Schmidt, Woiteshek, Krause

No SIF benefits when prior is not at MMI

In Schroeder v Applied Turf Products, 2015 MO WCLR Lexis 79, the Division affirmed a denial of SIF benefits for a claim involving a fall from a ladder. 

Claimant failed to prove his pre-existing condition at the time of the primary injury was permanent and stable as he was still in medical treatment and not at MMI for the pre-existing condition at the time the primary injury occurred.   His primary injury involving falling off a ladder resulting in aggravating an osteophytic neck and causing "post-traumatic" headaches. 

Claimant had obtained vocational evidence that he was totally disabled including psychiatric opinion of permanent disability from "mood" and "pain" disorders.

ALJ Kohner
Experts  Volarich, Gonzalez, Stillings

Fund denial affirmed for lack of synergy

The commission affirmed a denial of SIF benefits based on lack of synergy.  Reynolds v. Fulton State Hospital, 2015 Mo WCLR Lexis 76 (July 15, 2015).

Claimant settled a case against the employer for 3% and sought SIF benefits for prior medical conditions involving a right knee, a groin injury when the claimant was "grabbed" by a patient and a significant prior 38%t to the same ankle from a ligament reconstruction surgery as a result of a work injury while playing basketball with patients.   The commission found no  basis to award SIF benefits when the record contained no lay or expert opinion about the enhanced disability.  It noted a worker was generally competent to testify about enhanced disability when injuries were bilateral but "here the employee has failed to produce any evidence" except how each prior condition caused separate disability.

ALJ Ruth
Atty:  Keifer,
Experts:  Volarich
Treater: Krause

Court directs parties to commission to resolve when "open"medical means

State ex rel  ISP Minerals v the Labor and Indus. Relations Commission, No. SC 94478 (Mo. 2015).

                This is a case primarily about two things.  What did the parties mean when they settled a case and agreed to leave medical open and who should interpret the meaning of what is owed  if there is a dispute?  It is in some respects primarily a “contract” case about intent but is important for the procedural warning that employers may be pulled back into the comp system if the contract language is unclear or if the parties dispute what it includes.

                The problem in the first instance arose when the parties settled a case for disability but claimant had ongoing medical issues related to a pulmonary condition and apparently was at risk for silicosis.  To address these concerns, the employer agreed to leave medial “open.”  The employer apparently did not want to pay for inhalers and basically argued that the medical was left only partially open to include monitoring such as scans but not include other things.  It was the employer’s position that when the case was settled that the employee’s only recourse was to sue them in circuit court for specific performance or breach of contact if they didn’t like what was being paid or what was being denied.

                The Supreme Court in oral arguments questioned the narrow interpretation by the employer when it promised to “leave future related medical care open” that it meant to only include monitoring and not a broader array of treatment such as inhalers.  In the case claimant had sought to obtain inhalers, but the employer denied benefits based on a second opinion contrary to the recommendations of the physician they designated in the settlement contracts to provide treatment. 

                The court resolved the dispute based on its statutory interpretation.  Section  287.390.1 did not include language which divested the Division of jurisdiction in these circumstances.  Section 287.801 vested authority to “review” claims of future medical benefits with the commission and appellate courts and not the circuit court. The Division has long established authority to sort out the employer’s obligations for treatment for industrial injuries.  The court noted the issue here was one of interpretation, caused by the contract language itself, and not a matter of enforcement.   If the issue was simply enforcement (an unpaid award, for example), then 287.500 provided a procedural remedy to register and enforce the judgment through circuit court.

                  There may be a drafting lesson here to avoid this type of “buyer’s regret"  by the employer  designating a specific specialist on the contract.  What if the specialist dies or retires and there are no contingencies?  What if the specialist does something unexpected?  Perhaps the drafting lesson is to retain the right to select a physician rather than naming one person without other contingencies for medical management of a claim.  Parties can certainly use additional pages to sort out contingencies rather than the “short hand” method used here.  Defense counsel in oral arguments spent a lot of time describing the word "open" as a term of art in comp.   Parties are free to structure what they will pay for and not pay for, which is becoming necessary in more cases generally because of Medicare involvement in many comp settlements.  The Medicare problem becomes a bigger problem to if  parties in cases agree to leave medical open, acknowledge they are settling in consideration of Medicare's interests, and then refuse to pay for treatment.  The issue of enforcement is often understated in contracts.  Perhaps even if the Division technically retains jurisdiction the parties could designate by contract other means to resolve disputes more quickly when the costs are limited such as various ADR methods.
Atty:  Lindsay, Mogab

Need to lie down supports Fund total

In Ronald Lawrence v  Treasurer of the State of MO, WD 77998 (July 28, 2015) the court of appeals reversed a denial of PTD benefits against the second injury fund, based on expert testimony that claimant's need to lie down flowed from a combination of back problems.

Claimant injured his back at work when he fell while trying to place a cable on a rack.  He settled the case with the employer for 15% disability, the rating of claimant's expert.  His history included a prior back condition which required surgery as well as prior surgeries to the shoulders and knee.  He stopped working based on the opinion of his treating physician.
The SIF asserted defenses of accident and nature and extent.  The appeal involved only the issue of nature and extent.  The Fund offered no expert opinion to challenge the findings of claimant’s expert, Dr. Koprivica and Dreiling who concluded that the primary injury caused a worsening of his back condition and “squatting” at work caused a disc to “bulge” resulting in acute radiculopathy superimposed on prior  back surgery and degenerative changes.  His treating physician placed him on restrictions not to bend and ultimately advised him to stop working.  He treated periodically for back pain leading up to the most recent 2015 injury.  Dr. Koprivica rated 15% disability. Claimant had not provided the expert a history that he felt he needed to lie down to alleviate pain, a symptom which he described at the hearing.  Dr. Koprivica in response to a hypothetical suggested any need to lie down flowed in part from pre-existing medical conditions that implicated second injury fund liability.  A vocational expert concluded that claimant was unemployable due to a combination of conditions including the back, right knee and hands and that an unpredictable need to lie down rendered him unemployable.  Dr. Koprivica assessed no prior disability to the hand or knee.

The Commission found the claimant failed to produce sufficient evidence to support PTD award against the Fund.  The Commission noted there was no medical expert opinion that claimant needed to lie down during the day, that the two expert opinions were inconsistent, and that there may be a psychiatric component to explain he back pain.

The court noted that the Commission found the claimant established that he was totally disabled but did not award total benefits against the Fund consistent with the finding because of the lack of medical expert evidence attributing a medical need to lie down in part to prior medical impairment.   The court noted that this was reversible error and not supported by the record which contained evidence from Dr. Koprivica in a hypothetical question that claimant was totally disabled due to a combination.   SIF counsel  asked  the doctor to hypothetize if  claimant didn’t have to lie down before the accident if the last accident alone was totally disabling. The expert testified that the last injury was not totally disabling because any medical need to lie down flowed from the totality of the condition.

Second,   the court noted such evidence about a need to lie down  was admissible even without expert opinion because it was within lay understanding and not restricted as solely a topic of expert opinion.   Claimant was competent to testify when he felt he needed to lie down because of spasms.  Claimant’s expert provided the expert testimony as to what impact that caused vocationally and the medical cause of his back symptoms.  Claimant did not have to produce a permanent work restriction.  The expert testimony and claimant’s own testimony  was unimpeached on this issue.  The court also noted that the case arose under  pre-reform liberal construction.   The court found the testimony complied with the statutory requirements regarding hypothetical questions because in this case the facts were introduced at hearing. 

This is a self-inflicted legal problem for the respondent on several levels. 
First, the Fund did not offer its own expert so opinion evidence was unchallenged.  The Fund over time has had various statutory restrictions regarding its right to compel medical or vocational exams to defend claims. 
 
 The Court notes the Commission did not have to believe the experts  but basically had no contrary opinion not to believe it and it was not going to jump in on the credibility determination.   Second, the court notes the Fund itself asked the hypothetical question and basically opened the door to the testimony.  Third, the court further notes the Fund never objected further to the response to the question.

The case further highlights the importance of self-restrictions as a component of vocational impairment and Fund liability as a pattern of similar decisions.  

Barnhill v Yellow Freight System, 2014 MO WC Lexis 34 (March 14, 2014) dealt with a similar theme.  In that case the ALJ found no persuasive objective medical expert opinion about a need to lie down but the Commission affirmed an award against the Fund of total benefits against the Fund.  In that case the employer had settled based on 100% PPD.  The Commission rejected the SIF argument that Dr. Volarich's need to lie down was due solely to the primary injury in isolation,  despite language that the need was "because" of the primary injury. 

 "We are not convinced by the Second Injury Fund's argument that employee's need to lie down during the day must be solely due to the primary injury because it did not arise until after the primary injury; this argument confuses chronology with causation and we do not find it persuasive."  It does not appear the Fund in denying liability in Barnill obtained any expert opinions to support its defense either. 

Sanders v Lionmark Construction, 2010 MO WCLR Lexis 74, based PTD against the Fund on a “need to nap” based on claimant’s subjective history when there were no prior permanent restrictions from a prior back surgery.   Similarly,  Harris v. Advanced Auto Parks, 2011 MO WCLR Lexis 28 based liability on testimony of prior altered work habits.

It is important to note in Lawrence there was no question regarding claimant’s credibility on his testimony about the ‘need to rest’ not is it clear there was any impeaching evidence by the Fund offered on that issue.  By comparison, similar testimony was rejected based on lack of credibility in   Peek v Western Missouri Medical Center, 2014 MO WCLR Lexis 98 (August 8, 2014), affirmed 2015 MO App. Lexis 345 (March 31, 2015) in which claimant was not found credible when he attributed a need to lie down to pre-existing conditions after a very large settlement on the primary injury. 

This is a pre-reform case and not governed by new rules which give more weight to objective evidence compared to subjective evidence, such as self-described restrictions to “deal with” pain.  In either event, it is perilous in a defense of a case to assume just because something is subjective that the Commission will find it lacks credibility.  

Tuesday, July 21, 2015

Fall on dark boiler room unguarded stair way allowed to go to jury

The court of appeals reversed a summary judgment on a negligence claim for a worker who fell in a hospital's stair case when the lights were out, the hand rail was removed, and he impaled himself on an exposed hand rail.  Woodall v Christian Hospital Northeast, ED 101777 (Mo. App. 2015) (July 21, 2015). He settled the case in worker's comp against the employer and then went after the landowner.

The case involves a worker for an asbestos abatement company.  CH was preparing the building for demolition and frequently removed and reinstalled the hand rail dozens of times  to remove items from the boiler room.  Appellant went into the basement to figure out why the power went out and then fell.  The court noted it "may be in dispute" whether it was "appropriate" to send the appellant into a dark boiler room to investigate the outage.

Appellant filed a claim under theories of premises liability and general negligence.  The court affirmed the summary judgment claim on the theory of premises liability and noted that the landowner owned no duty to an invitee because it shifted control of the property to the contractor, even though its employees remained on the premises and performed activities unrelated to abatement.  

In the negligence claim, claimant asserted
"general negligence in the handling of a stairway bracket, the presence of an inadequate electrical supply, and the failure to warn Appellant for possible hazards." The court found these issues created disputes of material fact that did not support summary judgment.

J.  Clayton
Atty:  Muchnik, Makepeace
 

Wednesday, July 15, 2015

Employer owes TKR for arthritic knee

A claimant cannot 'waive' her right for the employer to pay medical services for a work related condition until she knows the condition is work related.  Dierks v Kraft Foods, WD 77893 (Mo App. 2015) (July 14, 2015).

The case involves a  common scenario. Claimant is 68-years old. She has bilateral knee arthritis and asserts the left knee became symptomatic after the work injury.  An expert indicated her meniscus tear arose from arthritis and not from trauma. The Commission rejected the defense.  It found claimant had a new condition based on the opinion of her surgeon and her own testimony. 
As a result, the Commission awarded the medical benefits, future medical for a TKR, and disability benefits.

"When Dierks sought to get her knee surgically repaired by Dr. Buchert, she had no reason to believe that employer should be responsible for providing that medical treatment. It was only while performing the surgery that Dr. Buchert saw evidence of an acute injury to the knee and was able to determine that the meniscus tear had been caused by her work injury. "


The court rejects the employer's appeal noting "well-settled principle" that it defers  to the Commission to make determinations regarding credibility.  It  notes the employer "expresses a belief" that this deference  does not apply in cases in which testimony is submitted by deposition.  It relied upon Dr. Koprivica's opinion that the accident accelerated the arthritis and need for surgery and escalated the condition to the point of a disability. The Commission could reasonably rely upon expert testimony that osteoarthritis had progressed even in the absence of current x-rays to verify any progression.  

The Commission affirmed an award of PTD against the Second Injury Fund in part due to a prior right knee condition which had severe arthritis and required repair of a torn meniscus with no history of trauma.  The SIF disputed liability and asserted claimant was able to work 12 hour shifts and had no disabling symptoms.   The court noted that the SIF may have over-relied on statements from the claimant that her right knee was asymptomatic  before the new left knee injury and construed the statement to only mean the time period "right before the accident."

 "The fact that a person has managed to perform various work duties does not preclude the fact that they have a permanent partial disability. Frequently, restrictions placed upon workers by doctors are not measures of what an individual has the physical ability to do but are, rather, directions designed to keep the worker from engaging in behavior likely to worsen their condition, cause pain, or lead to future injury."
 
J. Ellis
Experts:  Koprivica, Cohen, Main
Treater: Buchert