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

Wednesday, July 23, 2014

Court rejects SIF "working total" defense

A bus monitor with profound prior medical conditions who performs duties part-time and has determined disabled by social security is still regarded as employable in the open labor market  at the time of the primary accident to obtain a total disability  award against the Fund.  The second injury fund asserted it had no liability because claimant was already totally disabled before the accident.  The court of appeals affirmed the Commission award of total disability benefits.  Brashers v Treasurer of the State of Mo., SD 32872 (July 22, 2014).

Claimant was a part-time bus monitor who reports disabling back pain after she tripped and fell in January 2009.   Prior to the injury claimant was not capable of any duties  beyond sedentary work due to multiple prior medical conditions and he had been awarded social security disability benefits.  She further limited her hours in in 2007 to about 20 hours a week because of intolerance to sitting and standing due to chronic back pain and fibromyalgia.  She settled a case with the employer for 12 1/2%.  Her expert indicated that her pre-existing limitations were profound. 

The vocational experts disagreed what was meant by "working" in the open labor market.    The SIF expert indicated that 'normal' competition in the open labor market required an ability to work full-time.  Claimant required accommodations due to her limited physical activities and couldn't tolerate  full-time work or anything other than sedentary duties. 

The ALJ indicated that part-time status was consistent with working in the open labor market, that her job was not an accommodated job structure and she had obtained the position through "normal channels"  and maintained the position for more than 2 years.  The Commission found the accident caused new pain and limitations, and disregarded a  medical opinion that claimant's accident did not cause any new occupational limitations.  The Commission was also within its discretion to review medical records that indicated after the accident claimant had identified minimal new pain complaints or that she had no findings of sciatica.

The court deferred to the Commission on conflicting evidence if claimant was gainfully employed or not.  It affirmed a finding that working part-time was consistent with gainful employment at least in this case.  "Our affirmation of that determination should not be interpreted so broadly as to suggest that all part-time employees would necessarily be found to be competing in the open labor market." The fact that claimant might be regarded as unemployable by social security did not prevent worker's compensation from reaching an opposite conclusion. 


The court noted that the return to work after the accident could be a failed return to work:  "this does not necessarily mean that she was not PTD or that SPS would not have hired her at that time..." for other reasons such as loyalty or to avoid "training costs." 
  
The court criticized the SIF brief noting that it in part it did not comply with the rules, mis-characterized the evidence that 3 out of 4 experts found claimant totally disabled and made non sequitur arguments that claimant was totally disabled and not totally disabled. 

Atty:  Morrison, Harris
Experts:  Koprivica, Lala, England

 
 

Friday, July 18, 2014

The "R" Word

Search the word “remission” in any work comp case database.  It doesn’t show up too often.

When symptoms go away it is a partial remission and when symptoms stay away it is a complete remission.   A condition which has gone away is a cure, unless, of course, it comes back. 

Remission can be more technically defined as a diagnosis that is no longer valid because any residual symptoms no longer meet the medical definition of the condition.    One example would be the definition of depression.  The “score” on a standardized test on the Hamilton Depression Scale is like a high school  ACT exam.  If it’s high enough one gets admitted to Depression University. 

The Commission conceptually has struggled what to do about medical conditions which are in remission.  An injury by accident requires proof of a medical condition and a disability.  An injury by accident may not be an injury under the statute because it may no longer be a condition (subclinical) or may not be disabling (asymptomatic).
Many medical conditions do not become disabilities because they go into remission even without medical intervention.  Dr. Whiteford reports that more than 50%  cases of depression go into remission within 12 months without treatment.  Whiteford, Estimating Remission from Untreated Major Depression, Psychol. Med.   2013 Aug;43(8):1569-85.Prof. Morina has noted that more than 50% people who sustained PTSD were in remission within 5 months after a trauma without specific treatment.  Morina, Remission from Post-Traumatic stress disorder in adults, 2014 Clinical Psychology Review 34:3 249-255. 

This distinction between remission and cure is more than semantic struggle.   The idea that a medical condition is no longer present is fundamental to whether an injured worker has a permanent condition to support disability or future medical.   Future medical exposure is funded on the premise that no condition reaches remission without prompt and inevitable relapse even with generous set asides to provide life-time maintenance care.     A change in medical condition due to remission may not justify PTD benefits. 

Second Injury Fund Claims

Accessing fund benefits for pre-accident medical conditions in remission  is based on the premise that a condition is never cured and has a potential to be an obstacle or hindrance that combines with a primary injury.

The Commission has based liability on prior conditions which were in part regarded in remission.  In  E.W. v Kansas City Mo School District, 2003 Mo WCLR Lexis 23  a psychiatric disability causing PTD was apportioned between primary injury and pre-existing  major depressive disorder (in remission) and personality disorder based on a remand to allocate to pre-existing conditions.

In Chase v St. Louis Children’s Hospital, 2006 MO WCLR Lexis 200, the Commission denied benefits against the SIF for leukemia noting the condition was not “active” and there mere “risk” of reoccurrence did not establish a basis to award disability.   Claimant’s expert rated a substantially high rating for pre-existing disability based on leukemia. 
Future Medical

The Commission has justified future medical awards by defining conditions as “partial” remission.   The Commission has affirmed future medical awards for conditions in remission:   Bauer v LE Sauer Machine Co., 2013 Mo WCLR Lexis 198 (PTSD, 2 year remission); Parker v Mueller Pipeline, 1990 Mo CLLR Lexis 54 (depression, partial remission); Treadway v Pemiscott, 2012 Mo WCLR Lexis 54  (psych, partial remission).

 It is somewhat unclear from the awards what is meant by “partial” remission but this suggests a finding of a permanent condition with reduced severity or frequency.  The mere possibility that a condition in full remission  might relapse does not support an award unless there is a probability any remission is temporary in nature.   The evidence in Chase did not apparently distinguish between a possibility and a probability.   Similarly, the probability that a condition remains in full remission does not support an award for future medical even though an injured worker may identify some residual symptoms. 

Friday, July 11, 2014

Comp and acts of terror

The war of terrorism has gone a long way:  the federal government has set up its own medical billing codes so we are fully prepared for the next disaster.

There’s a lot of work that has gone into the National Death Reporting System.  There’s   terrorism by fireballs and phosgene, sarin and smallpox, lasers and landmines.    http://www.cdc.gov/nchs/icd/terrorism_code_appendix2.htm.  It’s so alliterative the Animaniacs could sing it. One can imagine the post-apocalypse:  Charlton Heston pounds his fists on the sands in the shadow of the Lady Liberty, and Dr. Zais shouts:  “Hey guys, what’s the ICD code again  for ‘blew it up’?

 So what does the war of terror have to do with the world of worker’s comp in Missouri?

 Terrorism is defined as:  “Injuries resulting from the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives

  The FBI specifically identifies leading causes of domestic political terrorism flowing from eco-terrorists, animal rights extremists, sovereign citizen’s movement, anarchist extremism, militia extremism and white supremacy extremism. 

Missouri comp allows benefits for injury or death of the employee caused by the unprovoked violence or assault against the employee by any person. § 287.120.  There is no distinction whether violence is an unprovoked attack or direct or indirect injury from someone committing an attack based on some political or social objectives.
Missouri comp law may allow benefits for psychiatric injuries directly or indirectly associated with acts of terrorism.   A mental health worker whose job it was to provide employee assistance developed a permanent psychiatric injury after going to New York City to help postal workers.  Davis v Magellan Health Services, 2010 Mo WCLR Lexis 15.  In Garrett v Wick’s Truck Trailer, 2006 MO WCLR Lexis 102 the claimant failed to prove his prior PTSD was a measurable disability to trigger Fund liability.  His expert asserted his condition was exacerbated by news of the Oklahoma bombing and the Twin Towers attack.

Other cases have addressed claims of psychiatric injury dealing with horrific war time experiences. Claimant’s “harrowing experiences” during the Bosnian war entitled him to permanent and total disability benefits against the Second Injury Fund,  in Music v Red Brick Management, 2013 MOWCLR Lexis 1.The Commission  denied benefits for PTSD and denied a claim of total benefits against the Fund. In Anic v Bussen Realty, 2011 Mo WCLR Lexis 113 claimant alleged he was unemployable in part because of PTSD from experiences during the Bosnian war. The ALJ found causation too tenuous based on lack of documented treatment.
There is related area in which a worker  is accused or investigated for threatened acts of violence.   The Commission found that psychiatric injuries did not arise out of a hazard of employment when claimant was briefly detained and investigated for threats of mayhem which proved to be unsupported.  Davis v Mo Baptist Medical Center, 2014 Mo WCLR Lexis 42 (March 28, 2104).

The medical system has become better trained to respond to disasters.  Missouri is not a stranger to random acts of violence; what is more unusual is when they are politically motivated.  In comp, the issue is mostly off the radar for most industries that are not acting in political hot zones. No one understands a radical on the roof.   The comp ripple may not come from an explosion, but from everything to fear in fear itself.

Tuesday, July 8, 2014

Court compels commission to approve settlement

A survivor widow negotiated  with the employer to obtain a lump sum settlement but the Commission refused to approve the settlement and asserted that the agreement was not in accordance with her rights because it was less than the present value of the claim.  Hinkle v A.B. Dick, WD 76952 (July 8, 2014).

Section 287.390 defines when the Commission must approve a settlement:  a settlement must be not the result of undue influence or fraud, the employee fully understands his or her rights and benefits and voluntarily agrees to accept the terms of the agreement.  The same provision requires approval  "in accordance with the rights of the parties.". The Commission asserted essentially that if the settlement was not enough money in their opinion then it could not be in accordance of the rights of the injured worker and it didn't matter whether the parties wanted to settle or not. 

The Court found the Commission misapplied the law.  Nance v. Maxon Electric, Inc., 395 S.W.3d 527 (Mo. App. W.D. 2012)(Nance I) addressed a similar issue, but in Nance the employer unsuccessfully tried many times to obtain a settlement and then tried to stop a proposed settlement when the worker died unexpectedly from unrelated causes when the settlement was pending approval.  The court noted:  "This court rejected the employer’s argument that the Commission lacked authority to commute the payments for a lump sum that is either more or less than the present value of the future payments explaining that the parties agreed and stipulated to the present value of the claimant’s future benefits award." 

  The Commission's position in Hinkle is disturbing by the lack of deference given to the plaintiff's bar for advocating effectively on behalf of injured workers.  In this case it is Mrs. Hinkle, and not the employer, who argued the Commission refused to follow stare decisis and not let represented parties to the case strike their own bargain.

The parties can settle after an award by  commutation of the award or by settlement which involve different standards and may result in different sums  of money.  Hinkle merely affirms this point that was settled 2 years ago in  Maxon.

The case does not distinguish between represented and unrepresented parties.  An important fact in Hinkle is that claimant was represented by counsel who advocated for the approval of the settlement.  This is distinguishable from cases involving unrepresented workers who may have less of an understanding of their respective  "rights and benefits."

The parties had agreed to a $200,000 lump sum after paying death benefits for about 6 years.  The amount represented 49% of the present value. 




 

Monday, July 7, 2014

Death by prosthesis

Section 287.020.4 has its own special definition when there is a "death" that triggers statutory comp  benefits. "Death"  as a basis for the right to compensation means only death resulting from such violence and its resultant effects occurring within three hundred weeks after the accident; except that in cases of occupational disease, the limitation of three hundred weeks shall not be applicable.

In Greenlee v Duke Plastering Service, 75 S.W.3d 273 (Mo. 2002), the Supreme Court denied benefits noting a self-inflicted death was not compensable because among other reasons the death occurred more then 300 weeks after the accident.  The court rejected a constitutional challenge and considered it rationally related:  "The connection between a work accident and death after such a lapse in time could rationally be determined  to be too tenuous to allow. Despite any incidental inequality that might result, we cannot say that the three hundred-week requirement is an irrational restriction."

 So what if a worker dies from infection or stroke in week 301 after undergoing replacement of a prosthesis caused by the injury?

Section 287.140.5 provides   "If the employee dies as a result of an operation made necessary by the injury, the death shall be deemed to be caused by the injury." 

The comp case with open orthopedic medical by award or settlement represents the possibility of one or more prosthesis procedures.  Every medical procedure has certain inherent medical risks, including death, even though such risks may be regarded as remote and unlikely. 

The statute allows recovery for death by prosthesis within 300 week frame-work.  There are many cases in which open medical liability exceeds  300 weeks.    The "too tenuous" argument becomes less compelling when a worker never makes it past the operating room while undergoing a prosthesis replacement.  Section 287.240 becomes superfluous.  However,  a rational basis could support a 300 week limit  because the legislature could find that the employer should not bear the risk for post-accident worsening of general health conditions (and surgical risk conditions) particularly when procedures might arise decades after the original accident.

Nance v Maxon Electric, 395 S.W.3d 527 (Mo. App. 2012) involved highly unusual circumstances in which claimant died from unrelated causes while a settlement was pending approval.  Nance was an occupational disease case rather than an accident. 

In a recent Illinois case an employer argued claimant was barred from any recovery because his work-related claim did not arise within a 25 year statute of limitations for mesothelioma.  The court found since the worker could not have pursued the case within the first 25 years  there was no remedy available in comp and the worker could proceed in common law.   Folta v Ferro Engineering, 2014 Ill App. 123219 (June 27 2014).  A strict application of the 300 week rule may nullify any exclusive remedy defense under a similar rationale and the employer would have to rely upon any statute of limitations defenses to extinguish common law liability.     

"Death by prosthesis" may be unusual, just like the unusual facts of Nance of death while waiting on approval of a settlement.    In settlement contracts involving future prosthesis,  this might require a consideration of settlements actually defining terms over  such a basic fact of whether death means "300 weeks" or whether the parties mean something else. 

 

Thursday, July 3, 2014

Commission embraces most generous approach

The Commission has shown that it can be fair to employers.   With  just the right set of facts it affirmed  denials of compensation based on a review of recent decisions since May.

The commission affirmed well-established rules that a worker cannot prevail when an element of proof is missing from the case like statute of limitations or jurisdiction or accident.   Duncan v Fuqua Homes,  104 MO App. Lexis 607 (May 27, 2014)(SOL)  Lopez v Martinez, 2014 Mo. App. Lexis 633 (June 3, 2014) (Jurisdiction);  Frazier v Sullivan County Sheriff's Office, 2014 Mo WCLR Lexis 71 (June 3, 2014)  (walking up steps);  Gleason v  Ceva Logistics,  2014 MO WCLR Lexis  69 (May 15, 2014)(unexplained fall from rail car).  Gleason was not much of a victory for the employer as it was a SIF claim and the claimant  had already collected a settlement from the employer before this award.   In   Fagins v Dolgin Corp., 2014 MO WCLR Lexis 77 (June 13, 2014), the  commission noted "even the most generous reading of his testimony supports the administrative law judge's conclusion that employee has failed to meet her burden of proof."  

In other cases, the Commission re-allocated total liability awards against the employer to the second injury fund.  English v Odyssey, 2014 MO WCLR Lexis 74 (June 10, 2014), Foster v Morton Buildings, 2014 Mo WCLR Lexis 78 (June 13, 2014), and Premium Standard Farms v Treasurer of the State of Mo, 2014 Mo App. Lexis 574 (May 20, 2014). 

The Commission  also affirmed denials when the worker tenders an element of proof  with flawed or unpersuasive evidence. In one case the Commission affirmed a denial seeking benefits for a condition rated by claimant's expert  that was never treated.  Byrd v Hussmann, 2014 Mo WCLR Lexis 82 (June 17, 2014). In another case, the Commission didn't allow future medical when it was based on a medical report that was 4 years old.   Smith v Roberts Dairy Co., 2014 MO WCLR Lexis 81 (June 13, 2014). 

The Commission in cases since May generated several opinions unfavorable for employers but based its rationale primarily on a statutory interpretation rather than using its sua sponte authority to increase awards or reverse ALJs on credibility, a policy demonstrated in multiple  cases earlier in the year.  This still  may come as a surprise to many reformers that they secretly intended strict construction  to expand statutory benefits.
  
*  Psychologist expert opinion relied upon by employer may not be allowed by statute.  Fagins v Dolgencorp., 2014 Mo WCLR Lexis 77.
* No right for joinder  by an employer in statute,  McGuire v Christian County, 2014 MO App. Lexis 502 (May 5, 2014). 
* Employee gets broader rights of specific treatment modalities in a future medical award. Barnhart v Eldon Nursing,  2014 MO WCLR LEXIS  64 9 (May 6, 2014).
* Employer penalties expanded for procedural default on causation issues based on statutory interpretation.  Yount v Circle, 2014 Mo WCLR  Lexis 65 (May 6, 2014).
* Employer loses right to contest miscalculated TTD. 
Wagner v City of Maryland Heights, 2014 MO WCLR Lexis 84 (June 18, 2014).
* Burden of proof lowered for co-employee liability claims removing "something more" for "gap" cases.  Leeper v Asmus, 2014 Mo App. Lexis 605 (May 27, 2014) as a result of statutory reform.
* Fund loses "actual and measurable" defense in PTD cases.  Lewis v Treasurer of the State of MO, 2014 MO App. Lexis 730 (June 30, 2014), as a result of statutory interpretation. 
* Fund's ability to admit "records review" testimony left unresolved.  Lutes v Schaeffer, 2014 MO App Lexis 564 (May 20, 2014)

Fagin says it all.   The commission knows its statutory obligation to   "weigh the evidence impartially" yet in some cases is willing to apply  a  'most generous reading.'