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

Friday, November 10, 2017

SIF total awarded with need to lie down

The Commission affirms without opinion an award of total disability benefits against the fund and a 35% back and 10% ankle award against the employer with no open medical.   Johnson v DirectTV, 2017 MO WCLR LEXIS __ , Inj. No. 12-100647 (released 11-3-2017)

Claimant is a 48-year old who fell in a customer's yard and underwent a single level back surgery. He was released from care in 2013.  He testified he now takes Norco and various medications from his personal care physician for "constant" low back pain.  He claims he has been unable to work since his surgery due to back pain and the need to lie down on multiple occasions during the day. 

He states now that his prior anxiety and sleep problems are worse, and that he lost previous work because of his need to take medication.  He noted his alcohol use problems appeared to be in full remission.  Dr. Paul felt the need to lie down during the day flowed from his back injury.  He has never regained full function of his left leg due to an earlier condition which produced paralysis. 

The ALJ awarded PPD against the employer based on the ratings of claimant's expert, Dr. Paul.  Dr. Paul concluded claimant developed pain in his right foot from standing too long.  He felt claimant's need for any narcotic medication ended after 2 years. 

ALJ:  Fischer
Atty:  Murphy
Experts: Halfaker, Hughes, Eldred, Pau

Cake Assault provides an important lesson for holiday planners

Image result for google images cake clip art

It is that time of year again.

The fall colors start to change.    Companies think holiday parties are the icing on the cake for loyal employees who have stuck it through the year.

The holiday party may have a dark side, especially when there is an open bar.  It is like a WPA for the under-worked labor counsel. It is the gift that keeps on giving It creates endless opportunities for litigation the new year.
“Let them eat cake” is always a great motivator The French were so excited they had a street party with live entertainment.     

Holiday parties, no matter how good the cake,  may erode morale rather than build it.   Some people would rather take the money and run or have needles shoved under their finger nails rather than choke down one more holiday hoedown.  

This takes me to the recent news story from Florida in which a woman was charged for date violence with a birthday cake.  Like most date violence with birthday cake crime stories, there was more to it than that.  This probably wasn’t just some playful cake slice -in-your-face moment between a giggly groom and a bride. 

According to the Tampa Bay Times, the girlfriend, Karina Mora-Noveco, on Nov. 2, 2017 makes a birthday cake for her boyfriend, Robert Brown.   They lived in Dunedin, Florida, which is in Pinellas County about four miles from the Gulf and where it never snows.

One can read between the lines to set the scene. The candles burn down.  The cake plates get put away.  The lights go low.  The clock is watched, minute by minute.    The boyfriend staggers home drunk, and not only drunk, he comes home late at 1 in the morning.  After a heated tete-a-tete, the couple decides to go to bed. 

She lets him have in the kisser with the birthday cake once he is asleep..  The report says she “slams” it in his face.   One can imagine the 911 call.  “You’ve been attacked by a – douboche –  is that your pet or someone else's?"

The police charge her with battery and dating violence.  

 In the end, he was probably darn lucky that he didn’t like fruit cake.    It could have been called in as a homicide.
The factual scenario of  assault by birthday cake contains absurd qualities only found in law school exams and Florida newspapers.   

What lessons can be learned from the holiday party planners? 
A holiday party, like the cake in the story, does not solve dysfunction in personal relationships or in business organizations that may have fundamental flaws.  While holiday parties may be wonderful things in some organizations, such parties can become litigation roux.

Letting people eat cake  becomes a source of combustion rather than celebration.

The story of birthday cake has the familiar themes  of alcohol, anger management, impulse control, and perceptions of unfairness which pervade many  employment litigation, harassment claims  and some holiday related workers compensation cases. 

Once in a while, some guys need to have some sense knocked into them.

Thursday, November 2, 2017

Commission affirms denial on lack of crediblity but "disavows" findings that medical condition was idiopathic

Clayton Hosmann
v Bill Grant Ford
Oct 31, 2017 Wilson
2017 MO WCLR LEXIS 49.

The Commission affirms a denial of benefits that claimant was not credible on issues regarding medical history, physical limitations and restrictions which undermined the medical opinion of his expert.

Claimant had a history of prior left leg radiculopathy and alleged he developed an occupational disease in 2012 while detailing trucks.  In 2013 he underwent back surgery with hardware. Dr. Swain, his expert, concluded his prior condition had "resolved."  Dr. Belz attributed the condition to polyarthropathy.

The Commission disavowed the ALJ finding that claimant's condition was idiopathic from an auto-immune disease or the expert opinion that claimant's repetitive activity was not a contributing factor to his condition, but affirmed the denial based on lack of credibility.

Wednesday, November 1, 2017

Commission may parse opinions of multiple experts to support PTD award

Barnes v Treasurer of the State of MO.
ED 105508
Oct 31, 2017

The Court of Appeals affirms an award of SIF total and rejects arguments that claimant must prove a case by a single expert, that the decision was erroneous because of admission of a hearsay report and the decision was not supported by the evidence or against the overwhelming weigh of the evidence.

Claimant alleges he hurt his back changing a tire in 2009.  Claimant was identified with two disc abnormalities and underwent a single level fusion that resulted in permanent work restrictions.  Before the accident he had previous surgery at the same level, settled the earlier case for 25% and asserted he had no further problems.

The ALJ awarded PTD against the employer alone and excluded a hearsay report.  The Commission modified the PTD award against the fund, admitted a hearsay report, but concluded it was not persuasive because it was hearsay. 

The court noted that a single expert did not have to testify to causation and to disability and that the Commission could consider multiple opinions of different specialists to form its opinion.  The Commission could rely upon the defense expert that the last accident alone caused only permanent partial disability and rely upon the plaintiff experts that claimant was totally disabled and not adopt their position that the last accident alone caused total disability.

The SIF offered no evidence that the Commission relied upon the hearsay report for its conclusions.   It did not address whether the admission was error but essentially concludes any admission would have been harmless error since the SIF failed to show prejudice.  The Commission indicates the report was hearsay within hearsay.  The record does not address why the Commission elected to reverse the ALJ and allow a report with no value to be admitted into evidence.

Hon Dowd

Commission affirms denial - failure to prove accident

Saine v Pepsi Beverages Company
2017 MO WCLR Lexis 48
Oct 22, 2017

The Commission affirms a denial of benefits that claimant herniated a cervical disc herniated when he stopped his vehicle quickly and jerked his neck. .

"Employee did not show a single, identifiable traumatic event or unusual strain occurred during any single work shift. Specifically, the administrative law judge found employee's evidence of the alleged accident, as lacking in credibility. The administrative law judge found claimant gave several diverse and distinguishable versions of how the alleged incident occurred."

The Commission found harmless error that the ALJ relied upon a reference to deposition that was not part of the record. 

"After careful consideration, we are not persuaded to disturb the administrative law judge's credibility determination as to the nature and onset of injury. As pointed out in the administrative law judge's decision, employee identified the nature of the injury (as well as the date), differently in various incarnations of his Claim for Compensation."

The Commission noted the ALJ   "recounted and substantially relied upon his firsthand observations of employee's testimony regarding the issue of employee's credibility."

At various times, "claimant reported a lifting injury, a turning or twisting injury, swerving to avoid a car, an injury caused by repeatedly backing up and hitting the loading dock, stacking, and hard steering."

 The ALJ notes  "that the statute of limitations has not yet run in the event that the claimant can determine how the injury occurred and the date in which the single work shift occurred."

The decision points out some inconsequential typos in the ALJ's award.

ALJ Kohner
Experts:  Kennedy, Rutz

Monday, October 30, 2017

Commission rejects "he was working" SIF defense

The Commission affirmed a PTD award against the second injury fund despite a rating of 90% to the primary injury and claimant's attempts to minimize the impact of medical conditions prior to his accident.

Claimant alleges he hurt his back after pouring concrete for a boat ramp in 2006.
The ALJ awarded 55% for  the primary case involving a back surgery.  He experienced  cauda equine syndrome and released with permanent lifting restrictions.  He sought psychiatric counseling for a variety of psychiatric issues which he attributed to being in the "dumps" after the surgery. 

The ALJ awarded PTD based on in part on vocational testimony that claimant was "bedridden" and dependent on narcotics.  Claimant reported back and leg pain attributable to his recent accident and prior conditions including a previous back surgery.  The ALJ found that the high rating of claimant's expert for the primary injury may have been based on incomplete information about prior conditions over-relied on claimant's own attempts to minimize their impact.  

Head v Mo Department of Conservation, 2017 MO WCLR LEXIS _____.
Oct. 23, 2017

ALJ Spillars
Atty: Korte