Tuesday, June 20, 2017

Learning Risk Management from falling on ice



isk management makes me think about the difference between hockey and synchronized figure skating. 

There are bragging rights between figure skaters and hockey players, according to my daughter, who is an avid synchronized skater.   There is a popular saying among figure skaters  that if figure skating was easy it would be called hockey.   Hockey boys are padded, and their pads have pads, and they could be dropped out of an Apache helicopter, bounce off the ground, and probably still not feel it.  Figure skater girls, on the other hand, are born to be wild, go out there with only their wits and the grace of God to protect them.  

That’s not to suggest both camps do not have real athletes.  I don’t want to suggest figure skaters are more athletic than hockey players.  Everyone brings different skills to the table.   I am sure it takes a certain amount of upper arm strength and athleticism for young hockey boys to drag that all that padding around. Hockey players on a good day might be able to bend it like Beckham.  But figure skaters – they bend it like Circ du Soleil  every day.

People will fall.  It is a given both in risk management and in skating.   

People in comp know about big injuries from small risks.   
Work comp risk managers  try to make the world safe, to keep potential claimants in bubbles, so they do not end up with herniated discs when they try to catch pens falling off of desks or hurt themselves using public toilets.
 No one in risk management would green light ice skating.  "This is crazy!  You want them on something slippery… an entire rink of ice… and balanced on tiny sharp blades … and going really fast… and spinning with one foot extended over and behind the head …. I’ll get back to you on that…. And you want a whole block of them together synchronized?  And no helmets?"

The likelihood of serious harm from high-risk skating moves is small because team skaters are really good at what they do. The ability to face risk builds confidence and does not overwhelm skaters with anxiety and fear of indecision about what might happen if they might fall.   They know at some point they will fall.  This is a forgotten lesson of over-sheltered parenting.

Skate parents are odd to encourage this sport because so many are so careful in most other aspect of parenting to encourage good diet, and exercise, and plenty of sleep. They teach their children not to dress up in black clothes and play in the street at night, or high diving from cliffs, or stand downwind from sweaty, teenage hockey boys. 

Ice arena managers may know the local paramedics by first name.  It’s classic risk management exercise to call them, to put up the Bat Signal, to get someone with a jump bag to figure out if someone is hurt or if they are really hurt.  In an over-sheltered world of parenting, it is easy to think every little thing is the end of the world. 

As a young boy I purposely set out with friends to find the most dangerous and steep hills to fly down on a bicycle without a helmet.  It was the closest we came to thrill rides. I remember a sensei taught in martial arts classes  from the very beginning to learn how to fall because everyone should  expect to be taken to the ground.

I had gone years skating  as an adult without any lessons or without taking a serious fall. I cannot recall precisely what happened last year in the seconds from skating alone  and then being flat on my back.   There were no flying tweeting birds, like the Warner Bros cartoons. I remember thinking the night was ending badly when I looked up at rink lights and paramedics told me “DON’T MOVE!”      Don’t be that 1 in 1000 person that ends up  like Natasha Richardson.   Waiting too long to be seen  is the last bad choice anyone whacked in the head could make. Why take that risk?  I could make that choice to wait if I wanted, but just sign the waivers so they don't get blamed.

Ice is hard.  I remember that.

We all get impatient when the computer reboots or reloads.  Everyone  hates the Microsoft hourglass.    We all expect  the hourglass to finish up quickly.    Sometimes it takes awhile. Sometimes it takes the body a little time to reload the program, too.

A friend of mine told me he has eight or nine concussions.  He had lost track how many. It was bragging rights.  Maybe it was just odd reassurance.

I told him that a nurse suggested that maybe I should use a helmet.
He just smiled.


Wednesday, June 14, 2017

New book explores the latest Misssouri workers' compensation cases and 2017 reforms

RUB SOME DIRT ON IT! tells how Missouri tried to fix its comp law in 2017 as part of major tort reform, the new rules of the road in Senate Bill 66, and the disaster that happened the last time Missouri business tried reform to put the comp genie back in the bottle. The book describes more than 100 of the latest cases, medical claims too crazy to make up, and the latest legal fights and emerging issues.  It is packed with many helpful tips how people win and lose comp cases. 

The book also consolidates and updates a lot of blawgs from MO Work Comp Alerts  as an easy reference source.

The book is now available  through Amazon for pre-order and will be available on June 21,  2017.


Wednesday, May 24, 2017

Eastern District obstructs parties from reaching post-award compromise

Dickemann v Costco Wholesale Corporation
ED 105266
2017 MO App. Lexis 472
filed May 23, 2017  transferred to MO Supreme Court  6/14/2017

Parties are not allowed to strike their own deal after an award according to the latest case out of the court of appeals - Eastern District, in direct conflict with the Western District, in an important issue that may ultimately need to be resolved by the Supreme Court. 

The court of appeals affirms the Commission has no authority to consider joint agreements for approval under 287.390 (settlements of claims) and the proposed agreement fails because it does not meet the requirements of 287.530 (commutation)

This decision has huge implications for people who have awards, and seek to close out obligations that might stay open for decades and for injured workers who would rather have their money now than later.

This issue is deja vu for the Commission.

The Commission  has refused to approve post-award settlements in the past that it did not represent the full value of future installments. 

The Western District has told it to approve settlements  if the settlement met the requirements of 287.390.1 if it is not the result of undue influence or fraud, the employee understands his or her rights or benefits, and voluntarily agrees to accept the terms.  In Hinkle v A.B. Dick Co, 435 S.W.3d 685 (Mo App. 2014) the Commission balked about approving a settlement which paid 49% of the present value until it was ordered by the Western District to approve the settlement, following Nance, which found the controlling statutory authority for settlements was governed by 287.390.1 for non-contested commutations and not solely  287.530.

Dickemann is factually similar to Hinkle, in some respects.  The proposed settlement of $400,000 is not equal to the commutable value of future installments.  The parties seek to end their liability to pay future installments by a lump sum. In this case,  the employee seeks the settlement and the employer adopts the arguments and proposal. 

 Dickermann case declines to follow Nance or Hinkle, and claims the only controlling authority for post-award settlements is 287.530, and the parties fail to show the settlement proposal meets the statutory requirements of 287.530:  that the proposal is equal to commutable value and that unusual circumstances exist in the best interest of the parties (for example, a shorter life expectancy as in Nance) to support any commutation.  The court finds under the rubric of strict construction it cannot find a "claim", like the court in Nance, and finds only parties to claims can strike their own deals. 
Section 287.530 applied as the procedure to settle post-award liability whether the commutation was "contested" or not

The parties sought approval through criteria of 287.390 rather than 287.530 following precedent in Nance and Hinkle , and argued  the doctrine of stare decisis to follow the Western District's precedent. 

The court suggests 287.390 allowed the Commission to approve settlements only "in accordance with the rights of the parties" and the provision may conflict with the criteria  of "undue influence, understood rights, and voluntarily agrees..."  but waited for a "future case which would directly present the issue" for consideration.  Nance followed the latter criteria.

The court noted the joint agreement failed to  list any of the statutory grounds of 287.530:  best interest of the parties, unusual circumstances, or present value.  The proposal represented about 2/3 of the present value. 

The court and commission  relies upon strict construction of 287.800 and concludes  that it was legislative intent to allow post-award negotiation as an exception and only in very narrow circumstances. 

The Western District now allows parties to strike their own deal, even after an award, and determine what is in their best interest.  The Eastern District now backs a long-standing position of the Commission that workers and their employers lose that chance to negotiate further after a final award and they must live by the deal, good or bad, and there are no second bites at the apple. 

Judge Hess authored the opinion.

Tuesday, May 2, 2017

No recovery for "personal" risk from horseplay

A worker failed to show his shoulder injury arose out of his employment when he was involved with an altercation with a co-worker and fell to the ground. Grayson v Thorne and Son Asphalt Paving Company, 2017 MOWCLR LEXIS 31 (April 18, 2017).   The Commission affirmed the denial on different grounds.

The ALJ noted the 57 year old worker began work on a morning in 2015 when a co-worker reportedly grabbed him.  Claimant stated he was not a voluntary participant to the assault.

Witnesses indicated there was no animosity between the employees and they returned to their regular duties without incident.  Another employee reported that people were always goofing around but wrestling was not typical conduct.  Claimant had a history of shoulder problems and provided an evolving history how the accident occurred. 

The Commission found the risk source was purely personal and not compensable.  The ALJ denied the case as horseplay.

Thursday, April 27, 2017

Commission needs evidentiary hearing for contested notice of show cause order

The court of appeals remands the case when the commission did not conduct an evidentiary hearing on whether notice was properly received when claimant did not respond to a motion to show cause to substitute payments for attorney’s fees from her attorney Harry Nichols to the Nichols Living Trust, in the event he predeceases her. 


Saturday, March 11, 2017

No credit in temporary award without sufficient foundation of self-funded plan.

Miller v Nieman Foods
March 2, 2017

Claimant alleged a back injury from lifting boxes in January 2013.  The ALJ issued a temporary award and back medical bills of about $62,000 related to a prior surgery.

The Commission rejects the alleged error that the employer should have received offset for payments through a self-funded insurance plan.

"Employer argues that many of the disputed charges have already been satisfied, in part, by payments from employee's group health insurance plan through employer. But (as employer acknowledges in its brief) the record is bereft of evidence to establish the nature of that insurance policy, and whether such was fully funded by the employer or instead involved co-pays, co-insurance, deductibles, or monthly premiums payable by employee. In the absence of such evidence, there is no support for a finding these insurance payments and/or any adjustments referable thereto constituted benefits directly from the employer  for purposes of  287.270."

"Nevertheless, employer asserts it will offer the requisite evidence if and when this matter proceeds to a hearing for a final award, and asks the Commission to impose a "stay" on the Division's award of past medical expenses until the full hearing may be held. We must decline this request, because the relevant statutes do not confer upon the Commission the authority to "stay," in whole or in part, any temporary or partial award by an administrative law judge. Instead, pursuant to 287.250. RSMo.  these proceedings are kept open until a final award can be made"

The employer was entitled to a credit for a prior payment sent to claimant by the carrier.  The Commission indicated the employer could offer additional proof on the issue in a final award which could be an indirect invitation to settle the case. 

Thursday, March 9, 2017

Commission affirms 30 hour rule for part-time employee as "fair" resolution under 287.250.4

Johnson v RPCS dba Price Chopper
2017 MOWCLR Lexis 23 (March 3, 2017) (House)

Claimant was killed in a 2015 motor vehicle accident.  The issues in dispute were if he died as a result of accident arising out of his employment and the applicable compensation rate.

Claimant had retired and worked as a part-time floater meat cutter and at the time of the accident he was returning from a Kansas store to his home in Missouri.  The ALJ found that claimant was not traveling from the employer's principal place of business (it had 48 locations) and the accident arose out of his employment, relying upon  Harness v Southern Copyroll, Inc., 291 S.W.3d 299 (Mo. App. 2009).

The employer argued rate should be based on 30-hour rule as a part-time employee rather than 52 weeks.  No evidence was offered of any regular or full-time employee.  The ALJ employed his hourly rate when he was full-time to a 30 hour schedule.

Clamant appealed and argued:   

"that employee's work as a part-time floating meat cutter was "of the same or similar nature" as employee's prior work as a full-time meat market manager, and thus evidence of employee's own prior average weekly wage is sufficient for purposes of  287.250.3."

The commission affirmed the calculation by the ALJ based on the 30 hour rule at the former hourly full-time rate  as "fair" based on 287.250.4 and indicated that calculation under 287.250.3 was debatable.

"The 30-hour statutory minimum does not operate to cure gaps in the claimant's evidence, or to establish a de-facto 30-hour week wherever the evidence shows an injured employee was working part-time. There is no evidence on this record to establish "the number of hours per week required by the employer to classify [an] employee as a full-time or regular employee. " Consequently, there would appear to be no basis  for referring to or applying the 30-hour minimum, as there is no evidence that employer attempted to classify meat cutters working less than 30 hours per week as "full-time or regular" employees"

The employer did not appeal calculation using 30 hours although the claimant's part-time schedule was usually at 22 hours.