Monday, January 15, 2018

PTD "demonstrated" and "certified" by reasonable inference of evidence

Dennis Moss v Dept. of Corrections
DOLIR 1-10-2018
ALJ Miner
Atty:  Kiefer, McCain

The Commission affirmed an award of total benefits against the second injury fund and rejected an argument that medical evidence which did not expressly state claimant was totally disabled  did not certify or demonstrate an incapacity to work.

The claimant was awarded 32.5% of the shoulder following two shoulder surgeries including a replacement.  Claimant testified that the surgeries did not alleviate his severe pain.  The Commission noted it would have increased the PPD award if the finding had been appealed as claimant had no meaningful use of the arm because it became symptomatic with minor activities such as lifting a gallon of milk.

The ALJ found claimant established he was PTD against the Fund, and found sufficient and competent evidence to support the award.

The Fund argued that no physician "certified" or "demonstrated" total disability. The Commission rejected the argument:

"It would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the  extent of an employee’s physical functioning by making findings on examination, rendering diagnoses as to the employee’s medical conditions, and identifying restrictions or recommendations as to the employee’s physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee’s physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases."

"While we agree that § 287.190.6(2) requires (at least in cases involving medical issues beyond the realm of lay understanding) that expert vocational opinions—as well as decisions from administrative law judges and the Commission—be fully supported by credible, competent, expert medical testimony, we do not believe the legislature intended, nor do we believe it would be reasonable to conclude, that expert medical testimony, particularly with regard to the issue of an injured worker’s employability, cannot be supplemented (or refuted) by other, non-medical expert testimony. We believe, and so hold, that administrative law judges and the Commission retain the authority to review evidence in the record."


Commission finds claimant credible that he is depressed after back surgery

Kittrell v Townsend Tree Service
DOLIR 1/10/2018

ALJ  Tilley
Atty:  Walkenhorst, Morgan
Experts:  Sky, Woiteshek, Fucetola

The Commission affirmed an award for PTD following a two-level back fusion and an award for depression following the accident.

The treating surgeon, Dr. Coyle, felt claimant was capable of returning to gainful employment with restrictions.  The employer relied upon expert opinion from Dr. Fucetola who concluded that
claimant had a  somatic symptom disorder, given evidence of excessive reporting of pain and functional disability. He made reference to mild symptoms of anxiety and depression, though indicating these would not be expected to limit occupational functioning in a significant way. Claimant had failed some validity criteria on his functional capacity exam.

The Commission deferred to the ALJ's findings of credibility:
 "with regard to his symptoms and complaints resulting from the October 2012 injury. The administrative law judge, who was able to observe employee as he testified, expressly found him to be very credible on the topic of the nature and extent of disability he suffers referable to the work injury. We are not persuaded to second-guess the administrative law judge in this regard."

Dr. Coyle felt the accident caused a single level disc herniation.  Claimant denied he was symptomatic from his prior multi-level spinal disease.


Commission notes lack of authority in case to dismiss Fund claim

Arthur Lewis v Cassens Transportation Co.
Jan 11, 2018
ALJ  Hart

The Commission notes the ALJ lacked authority to "dismiss" a second injury fund claim as part of an award that denied a claim for benefits of a primary accident.

The Commission noted an ALJ had authority to dismiss only in limited circumstances:

 (1) upon an employee’s failure to prosecute the claim, pursuant to § 287.655; or (2) upon the voluntary motion of the employee prior to the introduction of evidence at a hearing, pursuant to 8 C.S.R. 50-2.010(12)(A). Additionally, an administrative law judge may strike pleadings and enter awards against any party who fails or refuses to comply with a lawful order of the Division of Workers’ Compensation, pursuant to § 287.650 RSMo.

The Commission ultimately affirmed the denial of benefits under the Fund claim based on a notice defense and that claimant cannot have a subsequent compensable claim if the first claim is not compensable. 

Commission affirms SIF total with admonition to properly defining issues in dispute

Hood v City of Kansas City
ALJ Rebman - affirmed
Atty:  Downing, Roberson, Colling
Experts:  Koprivica, Drieling, Wheeler
Treater: Reintjes

DOLIR 1-10-2018

Claimant, 66,  alleges he injured his neck and back from mopping  2 1/2 hours in his job a a stock clerk and the ALJ awarded 15% PPD with a PTD award against the Fund based on medical opinion of his expert, Dr. Koprivica.

The Commission rejected the Fund's argument that the new statutory standards applied, and found the pre-reform standard applied in the case because claimant's disability predated the effective date of reform.  The fund's appeal was contrary to the holding in Gattenby, 516 S.W.3d 819 (Mo. App. 2017)

Claimant relied upon multiple prior comp settlements in part as his basis to prove up the extent of prior disability.

The Commission noted the ALJ resolved the case by finding the claimant's expert more credible on the issue of causation,  No party identified causation as a disputed issue. 

"The parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial."

"nor has any party suggested the administrative law judge’s award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.

We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."

The Commission noted the parties incorrectly  asked whether claimant had an accident arising out of and in the scope of his employment when the correct inquiry was whether there was an injury arising out of employment.  It  noted the phrase "scope" was not within the statutory definitions. 

Wednesday, January 3, 2018

Proposed new comp reform seeks to close St. Louis Division office.

House Bill 1693, introduced by representative DeGroot, seeks to change 17 provisions of the workers compensation act.

Among the proposals

abolish the additional benefits for toxic torts. 
eliminate the reactivation provision to allow claims to be re-opened for various reasons related to prosthetics and life threatening procedure 
Redefine prevailing factor to compare occupational causes compared to all non-occupational combined rather than a single non-occupational factor 
eliminate one criteria for finding recreational activities compensable when the employee is paid wages or travel expenses. 
Restore subrogation rights of employers in wrongful death claims from toxic exposure 
Requires all parties to be "automatically retained" on any appeal
Allow review of temporary awards by an appellate court when the employer disputes all liability
Caps the cost for prosecution or defense on unreasonable ground based on the costs paid by the employer to defend the claim.
Bars admission in a civil court in a claim of discrimination under 287.780 that the employer sought a resignation as a condition of settlement.

These changes may have profound effects on employees obtaining current benefits under the Act. 

Will it pass?  Who knows.  One might not easily dismiss what can happen or not happen in the capital. 

But let's talk about something even more important.  DeGroot wants to move the city office of the  Division so he can have a new Division in his own district in Chesterfield.

Section 287.640  deletes the current statutory requirement to keep an office in St. Louis and instead adds a new office in Chesterfield. 

Section 287.640 indicates the Division gets 7 offices and 2 optional offices. The seven offices are currently designated as the state capital, St. Louis, St. Joseph, Cape Girardeau, Joplin, Springfield, and Kansas City.

It is unclear why no one in the legislature seems to know the "state capital" is Jefferson City, and refers to it on as "state capital" while identifying the other cities.  That may be the topic for another column.  This may be part of deep government to have a  secret state capital somewhere else like the governor's basement.

The bill allows the Division discretion to add other offices "in such other places, not to exceed two, as the division deems necessary for the efficient disposition of the business of the division."

The bill if passed means there must be a new office in Chesterfield, and that the office in the city of St. Louis is no longer required but optional under the two option policy.    The Division already exercised its two optional offices and  maintains an optional office in Columbia and has cases now in a re-opened office in St. Charles.  So one of those must go away or the bill change to add the number of options.

The Division always could have opened its own office in Chesterfield if it wanted to, but clearly   a house representative knows their needs better than they do. 

So long St. Louis city division.  We hardly knew you.

One might dismiss DeGroot  as a troll.

The provision is buried deep in the bill, page 23, so it is probably not click bait but a secret sleeper provision like half the things in the new tax code.  "Was that in there?  How was I to know that?  It's a really thick bill."

This maybe  is payback  to the  loyal 14,000 republicans in the 101st who put him in office by new construction and new state funded jobs.  This is just what drain the swamp  voters want when they clamor and holler for smaller government for everyone else.

Why not give his supporters the best like a new Division with fresh paint with that new state building smell?

But the bill would mean city people might have to travel to the county for court appearances.   Remember the great debate when highway 40 was demolished whether or not it might be a good idea to extend a Metrolink out to the county since the highway was already a pile of dirt.  Train people?  In Chesterfield?  Oh my!

Everyone knows how  people in Chesterfield have to rough it with their long commutes to nice safe neighborhoods and good schools.  It must be exhausting!    It is about time they deserve a break today so they don't have to drive into an urban environment like St. Louis city and get confused by the new credit card parking meters and  risk inter-acting with the bottom 99%.

If the bill  has a disparate impact to move the Division from the city to far west county,  that is a small price to pay for the happiness of  Chesterfield.    People who live in St. Louis city and  rely on public transportation to get to court can just not get injured at work.

Friday, December 29, 2017

Supreme Court affirms denial for heat exertion death claim

White v Conagra Packaged Foods
2017 MO 585 (Dec. 19, 2017)

The Supreme Court affirms a denial of benefits in a death case in which a machinist with multiple cardiac risk factors died at work after working in a hot environment.

The ALJ and Commission denied benefits based on conflicting medical opinion about the cause of death. 

" In the supplemental opinion, the Commission first determined White suffered an accident because White's "death at work was an unexpected traumatic event." Second, the Commission addressed the issue of medical causation. In doing so, the Commission answered the question of whether "work was the prevailing factor in causing the alleged accident." After weighing the expert testimony, the Commission concluded Claimant had not met her burden of establishing medical causation. The Commission relied on Dr. Farrar's testimony in concluding White's work activities were not the prevailing factor in causing his cardiovascular event. The Commission was not persuaded by Dr. Schuman's testimony because the Commission found he "did not possess the necessary factual foundation to support his theory,"

The court noted the correct standard in cardiac cases is a special section and not the general accident rubric:

"Even though the Commission failed to identify accurately the "accident" (i.e., the unusual strain on White  due to the extraordinary heat) and the "injury" (i.e., death resulting from ischemia-induced arrhythmia), it accurately identified the key issue in this case, i.e., whether the accident was the prevailing factor in causing the injury."

"Section 287.020.3(4)   provides that a death or other condition resulting from a cardiovascular event" suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition." § 287.020.3(4)  (emphasis added). Accordingly, such cases are not exempt from the ordinary  accident/injury rubric set forth in section 287.120.1, and section 287.020.3  addresses how that rubric is to apply in these special circumstances

The court found the decision properly imposed a burden of proof based on prevailing factor rather than a preponderance of the evidence and the commission could properly reject lay testimony to the extent that it tried to establish the length of exposure became sufficient to support a causation opinion in a complex medical issue. 

Tuesday, December 19, 2017

Pro se claim fails in part without expert evidence

Claimant, pro se,  caught her hair in conveyor rollers while crawling under machinery  and claims hair was pulled from her head.  She complained of persistent "explosions" in her head which her doctor told her occurred because her head was "re-attaching."  She had additional treatment in pain management for her back about 9 months after the accident which she believes is related.
Zerwig v Verallia/St. Gobain, Inc. (Travelers), Inj.  No. 13-022178 ,  D/A 4-2-2013   (decided 12/17/2017)

The ALJ denied the claim concerning the back based on the lack of expert opinion, the lack of admissible medical records,  and disabling symptoms occurred 9 months later.  The ALJ awarded 2% BAW and found testimony of hair loss and minor head contusion within the scope of lay testimony. 

The claimant appealed and sought to introduce additional evidence.  The motion to submit additional evidence did not meet the standards of 8 CSR 20-3.030(2)  as the records she sought to introduce were not newly discovered evidence.  The Commission found no reversible error on claimant's allegations that she did not receive a fair trial, that the judge would not let her offer evidence, and the judge "badgered" her, among other alleged errors.

Claimant had attempted to offer exhibits which did not comply with 287.140.7 or 287.210. The claimant objected that she was unable to read from her own narrative opinion because of "well-taken" objections by the employer.

ALJ Denigan