Tuesday, December 5, 2017

Lessons on client image from drunk possums

Our story begins with booze, Florida, and opossums.

Sure, there’s probably a lot of different Goggle hits that match that search.

I am talking about the Thanksgiving Opossum, the one last month that broke into Cash’s Liquor in Fort Walton Beach, Florida. 

Some readers may have already heard the story of marsupial mischief.  The critter broke into a store and knocked down a bottle right after Thanksgiving and was found literally at the scene of the crime, passed out, probably after air guitaring all night to Lynyrd Skynyrd songs.

In a rush to get the story first, some journalists spread fake news that the girl opossum was chugging bourbon.  Nothing was further from the truth.  The bottle was cognac.     There’s no point in slut shaming an opossum that passes out and think she wasn’t drinking the best of the house.  

How did they figure this out?  According to a witness, the possum wasn’t “acting normal.”  This may be a low bar among opossums.  I suspect in the national  expert witness database there is probably an expert on opossums to define what is normal.

The opossum was returned to a safe place in the Emerald Coast Wild Life Refuge to sober up and fly right and not cause any more shame to her family of dumpster divers.

So what lessons can be drawn here for workers’ compensation?


Workers’ compensation, like other litigation, is  about creating an image and telling the story on most favorable terms that puts a client  in the best light. 

Take, for example, how the opossum story was reported. Some versions of this show stock photos of a generic opossum, opossums that were cute and cuddly that you turn them into a plush for your baby niece.  On the other hand, other photos showed the sad truth of the passed out opposum, life on opossum skid row; the opossum that life had turned to shadows it could have its own film noir biopic.

The Daily Meal runs the picture with the pretty fence climbing possum.  One wonders why a story about opossums is in a web site called the “daily meal” but that may be a story for another column which might be best answered by a different Google search of “Beer, Possum, and Louisiana.”

Sometimes new clients show up more like the opossum on the floor than the happy one walking on sunshine. Zealous representation sometimes may call for a little spin and re-packaging. Let's just say some public defenders know how to rent suits.
Nothing makes a comp claim look like a passed out opossum than someone who cannot tell the truth, changes stories all the time, changes medical histories all the time, and changes body parts all the time.   Employers have a similar need to protect their brand.  Pictures of opossum passed out might be a little funny, but are not quite so funny when it is an exhibit of a litigant from a Facebook  account.  Don't be the opossum that goes viral now becomes an example.

No matter how many breath mints,  sometimes the story is  still  going to stink. 

Friday, December 1, 2017

Surgery Center ordered to pay costs for misdirected medical fee dispute

Timberlake Surgery Center  asserted it was entitled to more money when the insurance company re-priced its bill and cut about 70% of the original charges. Zerrer v Ahal Concrete Contractors, 2017 MOWCLR Lexis 54

The Center tried three times to contact the Division to identify the cause number to file a claim for a medical fee dispute involving a thumb surgery  The Division reported it had no reported injury involving treatment for the thumb but only had an older case involving an elbow with a different named employer.

The Surgery Center relied upon the injury number in the earlier case and continued to prosecute the claim even when they had a chance to take a "fresh look" at their initial pleadings despite the evident difference in body parts, years of accident, and names of the employer and the prosecution changed from "reasonable" to unreasonable. 

The ALJ declined to address the constitutional challenge regarding the notice procedure and addressed a portion of the legal fees. 

ALJ  Ottenad
Atty:  Spooner, Sheehan

Supremes nix overbroad medical release ordered by circuit court judge

State ex rel Ronald Fennewald v. Hon. Patricia Joyce
No. SC 96219  (Nov. 21, 2017)

The Missouri Supreme Court granted a writ in prohibition to prevent a circuit judge from compelling release of "any and all" medical records in a wrongful death action. 

Various medical providers were sued for wrongful death related to metastatic colon cancer.  The medical providers sought a release of any and all records not only related to the colon cancer but to all records, all lab reports, all radiology, all pharmacy, all billing records and all documents including mental health, HIV-related information and drug or alcohol abuse. 

The court noted that a party is entitled to discover those medical records that relate to the physical condition at issue under the pleadings, and the authorization should track plaintiff's allegation of injury in the petition and should be tailored to the pleadings which can be determined on a case by case basis.  The physician-patient privilege impacts both the scope of permissible authorization and the process of determining the records to be produced.  The request for "limitless" records and world-wide authorizations not directed to specific providers further create the potential release of information that remains privileged. 

Commission enhances PPD award for "not credible" claimant

Nance v Aramark Uniformed Services Corp.
Inj. No. 12-104863
DOLIR Nov. 30, 2017

The Commission increases an award of PPD on appeal for a 68 year claimant alleging an inability to work following a multi-level cervical fusion. The Commission deferred to the ALJ finding that the claimant's testimony was not convincing, credible or consistent. 

The claimant was struck in the head between his eyes with a pipe in 2012 and the ALJ awarded 45% PPD.  The 68 year old claimant describe acute onset of neck pain that he states after surgery still  requires him to lie down during the day and take naps.  He states he relies upon a cane to maintain his balance.  He testified the employer forced an early resignation and refused to provide other benefits if he did not quit his job.

Claimant reported he did not report back or balance problems in the course of some of his treatment.  He state he "forgot" about prior litigation involving claims of severe and disabling injuries and balance and sleep problems.  Several witnesses provided conflicting evidence about prior job discipline or plans to retire.

Claimant had  a C4-C7 fusion by Dr. Kennedy and Dr. Raskas.  He had a revision surgery for pseudo-oarthrosis.  Dr. Volarich testified that  the accident aggravated an asymptomatic multi-level degenerative cervical spine and rated 85% for PPD.

Doctor Kennedy felt that claimant had limitations and that the "lack of full effort" noted during therapy evaluations was of limited importance. He felt the fusion was solid and the claimant was employable and that he did not need to lie down because of the surgery.

Doctor Kitchens felt claimant was employable and the three-level fusion would not cause any balance issues.

Gonzelez testifies that claimant was unemployable  based on restrictions from Dr. Volarich that imposed less than sedentary capacity.

Jim England testified that claimant was employable within Dr. Volarich's restrictions, except for the toxic "need to lie down."

The ALJ found Dr. Volarich less credible and did not award future medical care.  The ALJ noted claimant's credibility was substantially affected by inconsistencies on major issues such as the need to lie down, the conflicting medical opinions whether he has a myelo-radiculopathy, and found inconsistencies on other  collateral issues such as withdrawing money from a retirement fund, and use of a computer. The ALJ found the testimony was not convincing, credible or consistent. 

The Commission found that claimant's testimony lacked credibility but suggested inconsistencies  may not be intentional and flow from some memory problems. The Commission stated it addressed credibility based on the medical testimony and found Dr. Kennedy persuasive that claimant was employable with restrictions.  The Commission ordered open medical benefits open because of continued pain complaints from post-laminectomy syndrome.

AL Robbins
Atty:  Hennessey, Amsler
Experts:  Volarich, Gonzalez, Kitchen
Treater:  Kennedy, Raskas

Medical bills improperly admitted as outside scope of pleadings

Schieffer v Tomas DeCleene, ED 105243
Nov. 14, 2017

The court of appeals reversed a finding based on error alleged by the plaintiff in which he judge allowed introduction of the plaintiff's medical bills in a negligence claim involving an auto accident when the plaintiff originally plead the bills as special damages and then later deleted any claim for medical bills in his second amended petition filed on the morning of the trial.

The court found the admission of the bills was outside of the scope of the pleading and the trial judge abused his discretion to admit such evidence in finding his expenses of $14,743.75 was admissible.  The trial court has no discretion to admit evidence of bills  when it is outside the scope of the pleadings. A claim for medical bills must be stated in the petition as special damages. 

The deletion of the evidence eliminated the concern that a jury would consider what his insurance company paid (or repriced)  for the treatment.  Plaintiff alleged general damages including pain and suffering and the cost of a future surgery.  Plaintiff was offered surgery twice but cancelled it because of concerns about surgical risks. 

The court noted a party cannot implicitly consent to trying an issue outside the pleadings unless the consented to evidence would have been irrelevant to the issues that were contained within the pleadings.

The judge found the bills admissible because they "shed probative legal and factual evidence" whether the treatment was for the alleged injuries or in part due to prior impairments related to a prior disc herniation and auto accident.  The judge found under 490.715.5  any party may introduce evidence whether treatment rendered was reasonable, necessary and a proximate cause.  The defense attempted to introduce the records to differentiate the costs. The court of appeals did not conclude it was necessary to address the second point of alleged error.

The plaintiff had sought damages of $300,000. The jury returned a verdict of $25,000. 

Commission modifies denial and orders treatment for housekeeper's deQuervains.

Shegog v SSM Health
Nov. 14, 2017
ALJ  Kohner

The Commission reverses a denial of benefits and orders a temporary award to provide treatment for deQuervain's based on claimant's testimony about her job duties and medical opinion of her expert, Dr. Schlafly.

Claimant had long-standing symptoms in both arms, including a prior settlement, but the commission finds the deQuervain's a new occupational diseased despite medical opinion of her treating physician that the condition did not flow from her employment.

Claimant alleges she developed bilateral carpal tunnel syndrome and DeQuervain's tenosynovitis arising from her job duties as a housekeeper in 2012.  The employer denied the case and provided no benefits and relied upon medical opinions of Dr. Brown and Dr. Dysarz.   Claimant had worked for the employer for about a year and reports she used her hands 90% of the time. 

She underwent a right carpal tunnel release in 2012.  She treated with injection or left deQuervains.  She disputed the medical history in records documenting chronic symptoms with both hands.  She had a prior settlement in both wrists on the basis of earlier claims of carpal tunnel syndrome.  The ALJ found her credibility was "diminished" based on such inconsistencies. 

Claimant's treating physician, Dr. Dysarz, concluded that the work duties were not the prevailing factor in her carpal tunnel or deQuervain's based on her history and that he personally observed her job duties.  He noted her job description identified "frequent" lifting, carrying and pushing and pulling.

Dr. Schlafly noted in an earlier exam in 2006 that she had carpal tunnel syndrome and would probably require surgery.  At the time of his 2014 exam he recommended surgery he recommended left carpal tunnel release and left deQuervain's release. 

Dr. Brown concurred with the diagnosis of carpal tunnel syndrome and deQuervain's, but did not find the current employment to be the prevailing factor because the carpal tunnel was previously diagnosed in the earlier records. 

The ALJ found the defense based on statute of limitations was moot because he found the conditions were not compensable. 

The Commission found the work as a housekeeper exposed claimant to the risk of DeQuervain's, it accepted her testimony and the job description that her activities were "frequent" physical requirements of the job, and gave little weight to Dr. Dyserz's opinions about his own personal observations.  The Commission further accepted Dr. Schlafly's conclusions that there was a recognized link between hand motions in the job and the development of DeQuervain's, a conclusion that Dr. Dysarz indicated was controversial.  The commission gave little weight to Dr. Brown's "normal" exam of the wrist, when other doctors found the wrist with positive findings and Dr. Brown did not address "whether it is possible to rule out the continued existence of a left deQuervain's tenosynovitis based on a one-time negative clinical presentation." 

The Commission further addressed the statute of limitations issue that was not addressed by the ALJ and concluded that it was reasonably discoverable that an injury had been sustained. 

The Commission did not disturb the denial  of allegations of bilateral carpal tunnel syndrome. 

Thursday, November 16, 2017

Commission modifies award to allow bills for unauthorized care immediately after claim is filed

A substitute teacher, 33 years old,  fell on some ice and snow and alleged injuries to her back and knee.

The Commission affirmed a denial of benefits, based on a finding of lack of credibility, but awarded some limited medical bills from a provider not authorized by the employer.   The ALJ found the claimant  lacked credibility about testimony playing basketball several times a week and failing to acknowledge a radical change in weight of 65 pounds in a short time based on her medical records.

The ALJ found claimant's expert not credible. 

"It is not credible that Dr. Droege determine a twenty-five percent permanent  partial disability to the left knee when the three other physicians that treated found zero permanent partial disability. Neither of Dr. Droege's PPD ratings are credible. The record does not support an award of permanent partial disability "

The Commission modified the award to include $783 in bills from Dr. Droege in care over 10 days right after the claim was filed and medical was requested in the claim.  The Commission found the employer was put on notice was an unambiguous request for medical care that was included as part of the claim for compensation. The claim was acknowledged on Jan 14.  Claimant incurred charges starting on Jan 17.  The employer tendered an appointment on Jan 30 (16 days after the claim) . The employer failed to attend the appointment in a timely fashion but later provided additional care.

The Commission finds the care (therapy) reasonable and consistent with the type of care later tendered by the employer,  and ordered the care.  It notes the general rule to acknowledge some reasonable delay to set up appointments. 
" Furthermore, brief delays in scheduling appointments 
other than in emergency situations
 do not render employer/insurer liable for unauthorized care."

It does not appear claimant's treatment was an "emergency".  The treatment in dispute was more than a month after the accident.   It is not clear  where the commission draws the line between reasonable and unreasonable delay in the tender of care but suggests the employer must exercise its absolute duty  to tender care quicker than 16 days. 

The commission does not disturb the finding that Dr. Droege lacks credibility.   In the end, the Commission orders the employer to pay for treatment it did not authorize from a doctor the ALJ found was not credible.

Take away:  This case  shows the importance to check claims for additional comments that are often added outside the information requested in the form.  It highlights there is no safe harbor for employers before an answer is filed.  The Commission seems to reward  the growing  practice of extraneous comments added to the claim for compensation. 

Boykins Walls v Normandy School District
2017 MOWCLR Lexis 51
Nov. 13, 2017

ALJ  Keaveny
Atty:  Johnson, Shockley
Experts:  Droege, Doll