Thursday, October 20, 2016

Total disablity for serial knee surgeries

Head v Curators of the University of MO
2016 MO WCLR Lexis 65, 66 (Oct 12, 2016)
ALJ  Dierkes  (Boone County)
Commission adopts PTD award against employer
open medical to include potential  home modifications 
Claimant injured her left knee leaving a hospital after a meeting and slipped and fell.  The accident is Feb. 2003.    The ALJ awarded permanent and total disability benefits with open medical.
The evidence in the case involved testimony from Dr. Volarich, Dr. Gross and Dr. Cantrell.
Claimant was 63-years old and had worked for the university for about 20 years reviewing and approving budgets for research projects.
The employer did not dispute either accident. 
In February 2003 claimant slipped on ice in the parking lot, fell, and began to experience left knee pain.  Claimant had an arthroscopy in 2003 and then proceeded with a total knee replacement in 2003.  In 2004 she underwent a revision of the knee replacement.  She underwent a third surgery to the same knee in 2005.  In 2007 there was concern whether the replacement was failing.
The ALJ found she developed altered gait and  underwent treatment for her back including use of a spinal stimulator.
In 2008 she fell again on some ice melter and landed on both knees.  She began treatment for pain management and depression.  She began to use a scooter and wheelchair more often at work.  She retired in 2010. 
In 2011 she had another revision to the same knee and developed DVT.
The ALJ found claimant's need for serial knee replacements flowed as a natural and probable consequence from her knee injury and initial total knee surgery, noting testimony from Dr. Gross:
"I think she had some further surgeries based on trying to improve her pain. She had a second surgery that Dr. Bal thought the components were slightly off or the tibial component was slightly off so he tried to modify that to make it more perfect. She had a surgery after that because there was some question of ligament laxity. She had another surgery after that which injured the arteries.
So I think that as she continued to have pain in her knee, physicians who treated her tried to find out what her pain was and tried to make it better by doing further surgical intervention."
The judge noted further:  "Popliteal vein and artery injuries and the left lower extremity deep vein thrombosis were directly caused by Dr. Aleto's May 10, 2011 left total knee revision surgery, which surgery was not authorized by Employer. I find that Employer is nonetheless responsible for additional disability caused by this surgery, as, once Employer provided the first knee replacement, Employer became responsible for that prosthesis, including any revisions thereof.)
The ALJ denied the SIF claim and noted she had potentially disabling conditions predating the accident, including surgery to both knees, but that she had no occupational impairment.  The ALJ found no new disability associated with the 2008 accident. 
Dr. Cantrell felt the need for total knee replacement flowed from her arthritis.
The Commission affirmed an award for open medical for the knee, for neuropathic back pain that required a spinal stimulator,  and for home modification in the future to make it handicap accessible if her capacity to ambulate changes. 
The case was decided under pre-reform standards of "substantial factor."

Sunday, October 16, 2016

Note to Readers

I have removed many of the older posts to the blog. 

Some of the older posts will be updated and published in a book later this year. 

Wednesday, September 7, 2016

NAILING JELLO is a new Book about Post traumatic Stress Disorder claims

Product Details

PTSD claims have been a growing problem in the world of worker's compensation.  NAILING JELLO is a new e-book that looks at PTSD claims.  There are a lot of books  that describe ways to live with PTSD.  This book  looks at ways to live with the PTSD claims epidemic, methods  to evaluate claims and the myths about PTSD in popular culture that  impact claims.   The book is now available on Amazon. 

Thursday, March 31, 2016

Commission finds "new" disablity for worker told before accident she was unable to work

The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to  her back and had 6 previous spinal surgeries in a recent period.  Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).

The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in  September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was  placed on restrictions and told she could no longer work.  Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market. 

The ALJ found   "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "

The Commission reversed and found  that claimant had sustained new disability from a lumbar strain.  The Commission found claimant's expert unrebutted that claimant  sustained a new medical "condition" even if her "overall" condition flowed from prior conditions.  "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."

The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation.  The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy. 

ALJ:  Boresi
Atty:  Griffiths

Staffing agency tagged for parking lot fall as joint employer

An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO  in 2009.  The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).

Clamant worked for Penmark.  Penmark sent her to work at a food plant at Reckitt-Benekiser.  Reckitt controlled her activities on the job.  Benekiser paid Penmark  and Penmark paid her salary.  She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.

The ALJ found that while Reckitt may arguably be an statutory employer but  Penmark was the only liable employer under the subrogation statute as it was an insured entity.  The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmark.  Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case. 

The Commission reversed and found claimant provided joint services for both Penmark and Reckitt and as joint employers Penmark was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided.  As claimant established one employer (Reckitt) owned and controlled the lot, then Penmark became liable too because claimant only had to show liability of one employer to attach liability to joint employers. 

The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine.   The commission notes that the 'on premises' statutory requirement  was removed after reform and that post-reform cases have awarded compensation for  parking lot injuries  when the employer owns or controls the property.

The Commission awarded about $40,000 in benefits.

The employer offered no medical expert as a defense.  Claimant relied upon opinions of Dr. Paul to establish disability.  The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved.  The Commission limited its award of disability to the wrist based on its finding that clamant "downplayed' her  condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist. 

The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots. 

A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.

ALJ Mahon

Tuesday, January 26, 2016

Bad headaches from bang on head supports total benefits

Claimant established hitting his head while getting out of a manhole warranted life-time benefits, in a  decision affirmed by the Commission.  Schroer v City of Fulton, 2016 MO WCLR Lexis 5 (Jan 20, 2016).

Claimant is a 42-year old  a public employee who states he hit his head in 2006.  He claims he developed debilitating headaches.  An expert felt a pre-existing cavernous malformation contributed to his current symptoms.  Claimant stopped working 3 years later in 2009 and reports he has numbness, double vision and memory problems.   His wife testified that he "has changed."  Experts disputed whether or not he had PTSD. 

The ALJ awarded PTD against the employer along with life-time medical benefits.

ALJ:  Ruth
Atty:  Hines, Turner, Ahrens
Experts:  Daniel, Stillings, England, Weimholt

Thursday, January 21, 2016

Commission affirms PTD after fall from a ladder

Claimant was injured in 2010 when he fell from a six foot ladder in Greene County, Missouri.

He was assigned through a temporary agency to begin work in 2010.  The injury occurred when he lost his balance.

He injured his right elbow and left wrist.  He underwent closed reduction of the elbow and the wrist because of fractures.  He was diagnosed with nerve entrapment and for a brief time he was also diagnosed with t reflex sympathetic dystrophy.  A psychiatric concluded he worsened pre-existing psychiatric issues with somatic symptoms.

ALJ Holden found claimant was totally disabled.  She notes that the doctors concluded hand injuries limited his work to sedentary-light duty.  She concluded work restrictions imposed by claimant's forensic examiner, Dr. Bennoch, did not describe any job in the open labor market.  She felt claimant's complaints of 10/10 pain highly credible and that he had "failed" in a return to work as a telemarketer without significant accommodates to allow breaks.  The position was no longer available when the company lost its grant.

The commission affirmed an award of total disability against the employer, open medical, past medical  and TTD benefits.  ALJ Holden computed the rate based on the exceptional circumstance statute on claimant's testimony that he was paid cash and earned $10 when he had been paid for only 3 jobs varying lump sum amounts. 

The ALJ denied a medical fee dispute based on insufficient proof the employer "authorized" treatment although the claimant suggested the employer stated it would pay the bills.  The bills involved more than $50,000 in care. 

The ALJ addressed issues of statutory employment under 287. 040. 

 "In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney’s fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer."

The ALJ fund that Klean Rite was the primary employer and that Super Clean was obligated to pay as a secondary employer.  Because Klean Rite lacked insurance, Super Clean became liable under the statute.  Super Clean was a Texas company and used Klean Rite as a contractor on 24 occasions.  The ALJ found that claimant was paid in cash.   Super Clean filed a "motion for reverse judgment" in the event that Super Clean was found to the be a statutory employer. 

The ALJ rejected the defense that he was not an employee at the time of the injury, noting: "he drove the company vehicle at a specific time to the specific site specified in the work order, he was in possession and carried the work orders with him, he assisted the claimant performed specific cleaning duties on behalf of Klean Rite. I do find claimant's testimony credible that he was paid cash by David Gertz, and in light of the foregoing facts, I find it reasonable to conclude that he was employing Corey in a like fashion."

The commission used the term employee loosely and suggest that claimant's girlfriend could be also counted as an employee because she drove him to a job site.

The Commission modified the award and found that ALJ Holden erred that the employer waived its right to direct future care.

The Commission rejected the argument that suit against a statutory employer required the additional burden that a statutory employer meet the definition of an employer under 287.030 because of the use of the word "employer' in 287. 040.3 and requires only proof of the following:   One is a statutory employee if (1) the work is performed pursuant to a contract, (2) the injury occurs on or about the premises of the alleged statutory employer and (3) the work is in the usual course of the alleged statutory employer's business.

The Commission finds that work on a ladder was arguably demolition which required proof of only   1 employee, and even if it wasn't there was sufficient evidence to find 5 or more employees to meet the definition.

The case is important along with a long line of cases rejecting a waiver of the statutory right of the employer to designate future care, although the Commission in dicta signals  a road to such a remedy by better proof by showing chronic neglect of care produced endangerment.   The case is also clearly a message that employers without insurance who don't provide care and are sailing in the chop. 

No award was made against the second injury fund.  Claimant was rated with a prior 20% disability by a psychiatrist dating back to child hood.

The case did not disturb an  award of disfigurement, which the Commission historically has found incompatible with an award of PTD benefits.

Claimant was 45-years old, did not complete high school, does not drive and has had "legal" issues in the past with two prior sentences.   

The case is Mock v SuperClean Services Company, etal, 2016 Mo WCLR Lexis  3 (Jan 14. 2016).

ALJ Holden
Atty:  Mergen, Harmison (AmTrust), Burks
Experts:  Bennoch, Roeder,  Eldred, England