Wednesday, September 24, 2014

Punch in mouth aggravates PTSD for SIF total

An unruly patient who punched claimant in the mouth knocked her out of the labor market, according to the Commission which affirmed a total disability award against the second injury fund.  Seldon v St. Louis Psychiatric Rehab Center, 2014 Mo WCLR Lexis 110 (Sept. 16, 2014). 

The claimant was a 64-year old nurse who was attacked twice by different patients over a 6 month period.    In the first case she was trying to break up a patient fight and was stabbed in the side by a pair of scissors.  In a second assault she tried to stop a fight between a patient and the doctor and she had a superficial injury to her mouth.  After the first accident she began treatment for PTSD.  After the second accident her PTSD treatment continued.  The treating psychiatrist indicated she could work but should avoid direct patient contact because she became insecure.

 SIF liability requires proof of synergy which historically has been problematic when injuries involve the same body part (back on back, for example) or the same diagnosis (PTSD on PTSD, in this case). The ALJ  relied upon expert testimony that the total disability was a combination of the two separate accidents  to trigger second injury fund liability.

The employer settled before the hearing.   The ALJ noted weaknesses in the Fund's defense which offered no evidence to support its denial of accident. Its own vocational expert could not identify a single job that claimant could perform with 20 years of nursing experience. 

ALJ Denigan
Atty:  McChesney
Experts: Liss
Treater:  Packman
 




 

Tuesday, September 9, 2014

Dysfunction junction, what's your function?

There’s a new way to tap the second injury fund:  bad parents.

The Fund provides compensation when prior conditions combine with a new work accident. This rationale applies easily with contralateral orthopedic injuries.  The commission has recognized it also applies to systemic impairments like incontinence and obesity.   What is often over-looked is that Fund liability may also be based on bad parents.

The relationship between childhood trauma and work-place disability has received limited scientific study.  There appears to be a relationship between adult disability and experiencing  neglect, abuse or witnessing violence according to an older study, “Childhood Trauma and employment disability” in Int. J. of Psychiatry Medicine. 

The Commission has noted this impact of chaotic childhood on an ability to maintain employment. 

In the recent case Collins v Aztar Corporation, 2014 MO WCLR Lexis 103, the commission considered uncontested psychiatric testimony that claimant’s psychiatric disability from abusive experiences as a child contributed to her overall inability to work. 

In Brawley v City of St. Louis, 2010 Mo WCLR Lexis 10, an expert related a dysfunctional background on an inability to getting along with co-workers and anger management issues with supervisors. 

In Royal v Advantica, 2005 MO WCLR Lexis 89, an expert indicated that  the absence of a nurturing childhood caused workers to seek approval and dependency on physicians. 

In Nyberg v Ford Motor Co., 2008 MO WCLR Lexis 31, it was suggested that dysfunctional childhood predisposed the worker to chronic pain issues. 
In Sullivan v Advanced Drywall Systems, 2006 Mo WCLR Lexis 184, the ALJ denied benefits when claimant never sought treatment for a chaotic, disruptive and difficult childhood.   It was “highly doubtful” claimant considered the experience still affected him. 

The issue of bad parents remains a viable element of a PTD psych claim involving the Fund even though reform eliminated PPD recoveries for accidents after January 2014.   Fund liability derives from  the potential the condition may combine with a work injury.   Nearly everyone can be regarded as disabled.  Any injured worker can tell a story about not getting along with siblings or fighting with parents or times when life was not fully nurturing.  But why stop at mommy dearest?  How about difficult children or ex-spouses?   How about mental suffering dealing with a special needs cat?
It is one thing to suggest that dysfunctional families may damage some workers. It is quite another thing to suggest that comp is the remedy for any wrong in any relationships.     “Mom always liked you best” is great comedy but shouldn’t be a cause of action against the Fund.

Agreement to leave medical open includes disputed TKR

A worker who settled a comp case with an agreement to leave medical open should go to comp to resolve any disputes instead of circuit court, according to a recent opinion from the court of appeals.  The court also sent a strong message to the carrier that its argument to deny future medical for a total knee replacement wasn’t going to fly when it agreed to leave medical open.    Pierce v. Zurich American Ins. Co., WD 77095 (9/9/2014 Mo Ct. App. 2014), 2014 MO App. Lexis 968.

The claimant in 2012 settled a worker’s compensation case.  At the time claimant knew he would need a total knee replacement in the future.   The carrier disputed any need for a TKR flowed from the accident.  The parties agreed to leave medical open for a year after the settlement.  A month after settling the case claimant demanded treatment for a total knee replacement.  The carrier refused to authorize the requested treatment based on expert opinion that any TKR was not work related.
In May 2013 claimant sought specific performance for the carrier to tender care.  The circuit court dismissed the claim due to lack of jurisdiction.

The court agreed with the carrier that the circuit court properly dismissed the case based on lack of jurisdiction but dismissed it for the wrong reasons based of lack of subject matter jurisdiction when the real issue was primary jurisdiction as the Division should resolve the dispute first since the comp statute provided a remedy.    

Section 287.140.8 provides:
The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. The director of the division shall establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. The claim shall be reactivated only after the claimant can show good cause for the reactivation of this claim and the claim shall be made only for the payment of medical procedures involving life-threatening surgical procedures or if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device. For the purpose of this subsection, "life threatening" shall mean a situation or condition which, if not treated immediately, will likely result in the death of the injured worker.
Zurich argued that comp was the exclusive remedy even though it asserted based on these facts there was no statutory remedy under comp to reactivate a settled claim to obtain a total knee replacement unless one had been previously ordered.  Section 287.140 allowed re-activation of claims for prosthetic devices.   The court agreed that 287.140 provided a statutory remedy to address this request for a prosthetic, but found Zurich was wrong that the request in this case was not authorized by the reactivation provision.  Section 287.140 applied to replacement and new prosthetics whether they had been ordered prior to the settlement.

The meaning of this case is important to draft settlement agreements to clearly reflect the intent of the parties.  The agreement to leave medial open otherwise subjects the employer and carrier to liability for any medical related to the claimed body part and waives any prior defenses based on causation disputes.  The takeaway is that if the employer did not want to pay for a TKR it should have excluded those treatments within the settlement contract.   The carrier as a condition of the settlement language adopted 287.140 as part of the Division's standard settlement contract language and was stuck with it.   The court did not address the issue whether a settlement could waive 287.140 or limit requests under 287.140 within a certain time period. 
The court found no private remedy for fraudulently denying medical treatment by returning claimant to a doctor who previously disputed causation. 

Wednesday, August 27, 2014

Commission reverses finding of no accident and awards SIF total

The Commission  reverses a finding that claimant failed to prove disability from a new accident when the Fund offered no expert testimony that assessed no disability.     Gray v Jack Cooper Transport, 2014 MO WCLR Lexis 100 (Aug. 19, 2014).

Claimant had been under care for chronic back problems, he underwent a spinal fusion, he was placed on restrictions, and found at MMI in Oct. 2004 with the caveat that his back would flare up from time to time.  He resumed care with the same doctor after January 2005 event when he reported that his back flared up after loading vans at work, his x-rays identified no new conditions, and his treating physician did not apportion any disability to the 2005.

The ALJ concluded that claimant failed to establish he had an 2005 accident resulting in any new disability.  .  The ALJ found the initial determination of MMI before the 2005 accident was premature as claimant continued to receive further care after the 2005 accident which the doctor attributed to the earlier accident and fusion surgery. 

The Commission reversed and awarded total benefits against the Fund.  The Commission rejects the Fund's argument that because the treating physician  allocated all disability to the pre-accident condition that lead to an inference there was no disability from the 2005 event.   The Commission found more persuasive the conclusions of Dr. Poetz that claimant had a new lumbar strain and exascerbated his discogenic disease resulting in right leg symptoms. The Commission rates claimant with a 20% disability from the new accident (twice the rating Dr. Poetz provided or the lumbar condition) and awards lifetime benefits from the Fund for the 61 year old.

Claimant had prior medical conditions of 75% BAW based on the ALJ and discontinued work after heart surgery. 

ALJ  Kohner
Atty: Isbell
Experts:  Robson, Gonzalez, England
Treater:  Robson

Friday, August 22, 2014

Hotel chain may be liable as joint employer when agency underpaid wages

The Supreme Court in a case involving Missouri’s minimum wage law dealt with the issue whether the plaintiff who cleaned hotel rooms worked as an employee for a staffing agency or for the hotel.  Tolentino v Starwood, No. SC 93379 (Aug 19, 2014), 2014 Mo Lexis 201.

Starwood paid Giant Labor Services, a staffing agency, $5.00 to clean each room.  The staffing agency paid its workers $3.50 a room.   Plaintiff cleaned 122 rooms over 2 weeks and received nothing.  The agency’s principals were convicted of labor racketeering when they deducted the balance of plaintiff's wages after paying taxes for an illegal  'visa' fee.    The worker then went after Starwood for his lost wages and restitution of $3150 and sued under the minimum wage law alleging the hotel was liable for basing rate on the volume of rooms cleaned and for illegal visa deductions. 

The hotel argued that the plaintiff was an employee only for the agency, the compensation scheme was reasonable, and the  were not responsible because the agency committed illegal deductions.   The circuit court agreed that the compensation was reasonable and the chain was not responsible for illegal deductions.   The Supreme Court reversed and found summary judgment improper because there remained material facts in dispute. 
The court noted that summary judgment on the factual issue of joint employment is improper and indicates the facts could support a finding that the hotel was a joint employer.  There were material issues in dispute to the extent the hotel controlled the plaintiff and that the hotel maintained control regarding the method of compensation by paying per room rather than hourly.  Plaintiff asserts that the hotel controlled his performance standards because it fired him within two weeks.

The Supreme Court indicated that the minimum wage law imposed an independent duty to pay minimum wage and they were not absolved by paying minimum wage to an agency if the agency failed to pay the wages.  The risk of non-payment falls on the business and not on the worker, according to Justice Tietelman.  Although the hotel was not 'responsible' for illegal deductions if they were a joint employer they were responsible that plaintiff received at least was a minimum wage which in the end produced the same result.

Several issues are important.

The hotel now has potential liability if it is found to be a joint employer for the company it keeps if its staffing agency underpays workers.  This case is not just a contract claim about 2 weeks of wages but a class action.     The only deep pocket left is the hotel itself. The claim involves practices from 8 years ago.  Like many class actions, this fight may be  more about attorney's fees than anything else.
The minimum wage law requires workers to earn at least minimum wage and that any entity that controls employment activity could not delegate that responsibility.

There may be more to this story.   Starwood  in January 2008 began cooperating with federal officials in an investigation of the agency for human trafficking and continued to work with the federal agency for another two years.  The plaintiff worked at the hotel in April 2008 for only two weeks.  The hotel knew it was dealing with an agency under investigation  before plaintiff ever cleaned a room at their facility.    Starwood has an astute control of its national brand image.  It is not clear why Starwood did not  abandon its relationship with the agency in January 2008 once it became aware of the investigation for practices if proven true would damage their image or why it was still working with the agency in April 2008 when the plaintiff first reported to clean rooms.  This case could the product of paying the price of staying with a questionable vendor.   There is another possibility too.   Maybe the feds encouraged Starwood  to continue the relationship while the feds sorted things out. 
 


Wednesday, August 20, 2014

Drunken Women pose threat to police

New research from Orlando shows that women who recently consumed alcohol are the most likely group to cause violence against law enforcement officers based on police office records. This is particularly true  when the intoxicated woman is larger than average body mass.  Covington, Violence Vict. 2014, 29(1) 34-52.

Everyone knows this watching COPS chasing trailer trash girls. There is now an actual SCIENTIFIC STUDY to prove the point.  Dealing with angry intoxicated women is usually the Kobayashi Maru moment where there is no victory for anyone in uniform.  Smoke bombs and flash grenades might work with some people.  Intoxicated women from Florida usually require something more serious like a streetcar full of New Orleans parade cops or a tomahawk missile.

Additional research has also shown an increased occupational risk to police officers from naked people.
A study from Georgetown has shown  that calls involving suicide by cop are more violent when perps are naked, because nakedness “conveys important information about an individual's mental state.”    Simon, Naked Suicide J Am Acad Psychiatry Law. 2008;36(2):240-5.  True ‘dat.  

 
It seems the next definitive study would be to evaluate naked and drunken people.  Hypothesis:  Doubloons increase bodily injury.       

 
Law enforcement has unique occupational risks.  Cops have to deal with angry, intoxicated over-weight females.  Suicide by cop is a unique occupational risk because it is “by cop.”  Crazy naked people don’t rush the counter at Popeye’s with toy guns and expect to get shot, at least not in good neighborhoods. Cops deal with people with fire in their eyes. 

 A case in California awarded benefits to an officer who had the unique occupational hazard of pepper-spraying an Occupy protestor and became depressed by negative publicity.  Comp was there for him.  Maybe the protestor had less fire and more pepper spray in his eyes.  Missouri has no specific provisions in its comp statute to exclude benefits involving injuries with  excessive force.  "His jaw ran into my fist" is a perfectly good claim.   

People may never agree whether the police department in Ferguson was in the wrong or the right.   Those issues will be vetted in other courts for years.  The Ferguson story will ultimately play itself out many times in the Missouri comp system.

 Comp is a no fault system.   It doesn’t matter who’s wrong or right.     Maybe by then the song of angry men may have quieted down, although I  doubt it. 

Thursday, July 24, 2014

Employee fall after termination arises out of employment

A 48-year old car salesperson who fell on the employer's lot after he was fired can collect comp benefits in Missouri because actions winding down an employment relationship still arise in the course of employment. The Commission  recently awarded nearly $400,000 in a disputed case. Hartman v DJSCMS/Suntrip Kia, 2014 MO WCLR Lexis 85 (July 16, 2014).

"Injuries incurred by an employee while leaving the premises, collecting pay, or getting his clothing or tools within a reasonable time after termination of the employment are within the course of employment, since they are normal incidents of the employment relation."  The issue  was previously addressed in a pre-reform case of Jones v Jay Truck Driving Training Center, 736 S.W.2d 468 (Mo. Ct. App. 1987). 

Claimant in January 2012 was going "immediately" to his car after he was fired and fell on ice.  The ALJ awarded  60% PPD with future medical for a 360 fusion at L4-5. Claimant alleged he was unemployable in the open labor market.  The ALJ further augmented claimant's salary by including 39 weeks rather than the statutory formula of 13 week because the sales draw was atypical for a business that was winding down. 

 The ALJ  criticized both parties for not mentioning precedent and  fighting over a pre-trial discovery dispute about a corporate designee deposition.

ALJ:  Boresi
Atty:  Hoffmanm, Wepner
Experts:  Volarich
Treater:  Mirkin