Wednesday, August 27, 2014

Commission reverses finding of no accident and awards SIF total

The Commission  reverses a finding that claimant failed to prove disability from a new accident when the Fund offered no expert testimony that assessed no disability.     Gray v Jack Cooper Transport, 2014 MO WCLR Lexis 100 (Aug. 19, 2014).

Claimant had been under care for chronic back problems, he underwent a spinal fusion, he was placed on restrictions, and found at MMI in Oct. 2004 with the caveat that his back would flare up from time to time.  He resumed care with the same doctor after January 2005 event when he reported that his back flared up after loading vans at work, his x-rays identified no new conditions, and his treating physician did not apportion any disability to the 2005.

The ALJ concluded that claimant failed to establish he had an 2005 accident resulting in any new disability.  .  The ALJ found the initial determination of MMI before the 2005 accident was premature as claimant continued to receive further care after the 2005 accident which the doctor attributed to the earlier accident and fusion surgery. 

The Commission reversed and awarded total benefits against the Fund.  The Commission rejects the Fund's argument that because the treating physician  allocated all disability to the pre-accident condition that lead to an inference there was no disability from the 2005 event.   The Commission found more persuasive the conclusions of Dr. Poetz that claimant had a new lumbar strain and exascerbated his discogenic disease resulting in right leg symptoms. The Commission rates claimant with a 20% disability from the new accident (twice the rating Dr. Poetz provided or the lumbar condition) and awards lifetime benefits from the Fund for the 61 year old.

Claimant had prior medical conditions of 75% BAW based on the ALJ and discontinued work after heart surgery. 

ALJ  Kohner
Atty: Isbell
Experts:  Robson, Gonzalez, England
Treater:  Robson

Friday, August 22, 2014

Hotel chain may be liable as joint employer when agency underpaid wages

The Supreme Court in a case involving Missouri’s minimum wage law dealt with the issue whether the plaintiff who cleaned hotel rooms worked as an employee for a staffing agency or for the hotel.  Tolentino v Starwood, No. SC 93379 (Aug 19, 2014), 2014 Mo Lexis 201.

Starwood paid Giant Labor Services, a staffing agency, $5.00 to clean each room.  The staffing agency paid its workers $3.50 a room.   Plaintiff cleaned 122 rooms over 2 weeks and received nothing.  The agency’s principals were convicted of labor racketeering when they deducted the balance of plaintiff's wages after paying taxes for an illegal  'visa' fee.    The worker then went after Starwood for his lost wages and restitution of $3150 and sued under the minimum wage law alleging the hotel was liable for basing rate on the volume of rooms cleaned and for illegal visa deductions. 

The hotel argued that the plaintiff was an employee only for the agency, the compensation scheme was reasonable, and the  were not responsible because the agency committed illegal deductions.   The circuit court agreed that the compensation was reasonable and the chain was not responsible for illegal deductions.   The Supreme Court reversed and found summary judgment improper because there remained material facts in dispute. 
The court noted that summary judgment on the factual issue of joint employment is improper and indicates the facts could support a finding that the hotel was a joint employer.  There were material issues in dispute to the extent the hotel controlled the plaintiff and that the hotel maintained control regarding the method of compensation by paying per room rather than hourly.  Plaintiff asserts that the hotel controlled his performance standards because it fired him within two weeks.

The Supreme Court indicated that the minimum wage law imposed an independent duty to pay minimum wage and they were not absolved by paying minimum wage to an agency if the agency failed to pay the wages.  The risk of non-payment falls on the business and not on the worker, according to Justice Tietelman.  Although the hotel was not 'responsible' for illegal deductions if they were a joint employer they were responsible that plaintiff received at least was a minimum wage which in the end produced the same result.

Several issues are important.

The hotel now has potential liability if it is found to be a joint employer for the company it keeps if its staffing agency underpays workers.  This case is not just a contract claim about 2 weeks of wages but a class action.     The only deep pocket left is the hotel itself. The claim involves practices from 8 years ago.  Like many class actions, this fight may be  more about attorney's fees than anything else.
The minimum wage law requires workers to earn at least minimum wage and that any entity that controls employment activity could not delegate that responsibility.

There may be more to this story.   Starwood  in January 2008 began cooperating with federal officials in an investigation of the agency for human trafficking and continued to work with the federal agency for another two years.  The plaintiff worked at the hotel in April 2008 for only two weeks.  The hotel knew it was dealing with an agency under investigation  before plaintiff ever cleaned a room at their facility.    Starwood has an astute control of its national brand image.  It is not clear why Starwood did not  abandon its relationship with the agency in January 2008 once it became aware of the investigation for practices if proven true would damage their image or why it was still working with the agency in April 2008 when the plaintiff first reported to clean rooms.  This case could the product of paying the price of staying with a questionable vendor.   There is another possibility too.   Maybe the feds encouraged Starwood  to continue the relationship while the feds sorted things out. 
 


Wednesday, August 20, 2014

Drunken Women pose threat to police

New research from Orlando shows that women who recently consumed alcohol are the most likely group to cause violence against law enforcement officers based on police office records. This is particularly true  when the intoxicated woman is larger than average body mass.  Covington, Violence Vict. 2014, 29(1) 34-52.

Everyone knows this watching COPS chasing trailer trash girls. There is now an actual SCIENTIFIC STUDY to prove the point.  Dealing with angry intoxicated women is usually the Kobayashi Maru moment where there is no victory for anyone in uniform.  Smoke bombs and flash grenades might work with some people.  Intoxicated women from Florida usually require something more serious like a streetcar full of New Orleans parade cops or a tomahawk missile.

Additional research has also shown an increased occupational risk to police officers from naked people.
A study from Georgetown has shown  that calls involving suicide by cop are more violent when perps are naked, because nakedness “conveys important information about an individual's mental state.”    Simon, Naked Suicide J Am Acad Psychiatry Law. 2008;36(2):240-5.  True ‘dat.  

 
It seems the next definitive study would be to evaluate naked and drunken people.  Hypothesis:  Doubloons increase bodily injury.       

 
Law enforcement has unique occupational risks.  Cops have to deal with angry, intoxicated over-weight females.  Suicide by cop is a unique occupational risk because it is “by cop.”  Crazy naked people don’t rush the counter at Popeye’s with toy guns and expect to get shot, at least not in good neighborhoods. Cops deal with people with fire in their eyes. 

 A case in California awarded benefits to an officer who had the unique occupational hazard of pepper-spraying an Occupy protestor and became depressed by negative publicity.  Comp was there for him.  Maybe the protestor had less fire and more pepper spray in his eyes.  Missouri has no specific provisions in its comp statute to exclude benefits involving injuries with  excessive force.  "His jaw ran into my fist" is a perfectly good claim.   

People may never agree whether the police department in Ferguson was in the wrong or the right.   Those issues will be vetted in other courts for years.  The Ferguson story will ultimately play itself out many times in the Missouri comp system.

 Comp is a no fault system.   It doesn’t matter who’s wrong or right.     Maybe by then the song of angry men may have quieted down, although I  doubt it. 

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.