Friday, September 25, 2015

How absurd!

Statutory interpretation often requires the parties to try to figure out what the legislature meant when there exists no records of legislative hearings or other documentation.  This often involves heated arguments coming up with extreme interpretations and telling the opponent:  "The legislature couldn't possibly have meant that -- it's absurd!"

One of the "new associate on the block mistakes" is to assume in Mo comp  that 100% disabled means totally disabled.  100% is equal to 400 weeks of disability in Missouri law.  An ALJ criticized the plaintiff expert for rating with prior cumulative disability of more than 700 weeks. Washington v Meridan Mech, 2010 Mo WCLR 104.  The 2014 Commission sees nothing run with this.  The idea of 400 weeks is a "total disability" just because it is 100% of a man is "erroneous" and "absurd."  Wooley v Belo Corp., 2014 MO WCLR Lexis 54.

There are plenty instances of this type of thing.  It is not necessary to make an election of pleading occupational disease or accident.  What if it were equally both, after all?   "We find nothing in the Missouri Workers' Compensation Law that compels an injured worker to elect either an accident or occupational disease theory of compensability in order to recover benefits. In theory, at least, this would produce an absurd result wherein an injury may be determined to be equally due to work-related trauma and work-related repetitive trauma but recovery be denied." Bisch v City of University City, 2013 MO WCLR Lexis 137.  There's no default by pleading a percentage of disability on a claim because it would produce an absurd result and promote bad faith claims.  Taylor v Labor Pros, 2012 MO WCLR Lexis 77.

In the case of disability, one can still be temporarily disabled even after they are at maximum medical improvement.  Huh?  Otherwise, denying benefits would just be -- I don't know -- absurd!
.  "applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result." Greer v Sysco Foods, 2014 MO WCLR Lexis 41.  There's perennial debate when working is really working or not.  It is  absurd to argue wages earned at Sheltered Workshop was qualified as "wage earning."  Caldwell v Delta Express, 2008 Mo WCLR Lexis 145.  Or it might be absurd to even consider looking for a new job if still under a lot of treatment and expected to return to a former job.  Cooper v Medical Center, 1997 MO WCLR 64.   Or it's absurd to argue immigration status after one turns into a "legal" adult just as a basis to deny benefits.  Rivera v Hyatt Corp., 2011 MO WCLR Lexis 149

Sometimes this argument even makes sense, like not denying benefits to posthumous children because they were not  "living with" with parents at the time of death.  Hanneken v Storage USA, 2007 MO WCLR Lexis 141. 

In the case of medical benefits,  "It would be absurd, for example, if the legislature intended that an employer must provide ambulance transportation to a critically injured worker, but only after the critically injured worker provided employer with a medical opinion that the injury giving rise to the need for ambulance transportation was work-related."  Nouraie v MO Baptist Medical Center, 2013 MO WCLR Lexis 52.    One judge found awarding medical mileage could produce absurd results  to require mileage reimbursement when a worker was not required to travel outside the mileage the worker would normally travel to or from work.  Senf v Friendly Ford, 2002 MO WCLR Lexis 276.

Wednesday, September 23, 2015

Court declines to reduce meso award

Plaintiff sued a valve-manufacturer for exposure to asbestos based on a failure to warn.  Foreman v AO Smith, ED 101525 (Mo. App. 2015) (Sept. 22, 2015).

The court affirmed based on a failure to warn of exposure to asbestos product.  The  evidence circumstantially supported exposure from his work as a steamfitter up to 1983.  His claim was filed 30 years later when he developed mesothelioma.  The court agreed the two verdict forms in the case were inconsistent and difficult to explain but the inconsistencies did not render the verdicts illegal.  The case at one point had more than 50 defendants named and settlements against 15 other parties. 

The jury awarded 4 million for meso . The court allowed a pro rata reduction but rejected the contention the award should be pro rated among all of the 15 settled defendants because some of the agreements did not fully comply with the terms to be deemed UCATA  releases. 

Tuesday, September 22, 2015

Summary judgment reversed on meso death case

Bergstrom was diagnosed with meso in 2013 and died.  The case involves an appeal whether the manufacturer was entitled to summary judgment against the surviving widow based on lack of evidence of exposure during the decades her deceased husband  worked as a drywall installer.  Bergstrom v Welco, ED 102125 (Sept. 22, 2015).

The case involved the significance of deposition testimony whether he had exposure or not and the weight to be given to the party that he "misspoke" in the earlier testimony.    The fight involved what exposure he may have had before 1979.  The court found that exposure may have occurred from 1962-1976 even if the manufacturer discontinued use of asbestos in its products in the mid 1970s.  The court reversed summary judgment that there remained disputes concerning material fact. 

The case clearly demonstrates reliance on letters and documents dating back more than 30 years, a challenge more employers will face in toxic tort claims as a result of worker's comp reform.

Friday, September 18, 2015

Ringing ears bolsters PTD claim

Claimant worked most of her life  for a company in Greene County hat made paper products until the business shut down.  The business closed in March 2011.  She filed a claim that in December 2010 she developed an occupational disease of losing hearing because of exposure to loud noise.  Hall v Solo Cup, 2015 MO WCLR Lexis ____ ( Sept 4, 2015).  She was awarded PTD benefits against the second injury fund  in a divided opinion whether tinnitus with normal speech discrimination testing  represented a disability. 

She worked in a print shop and used hearing protection.  In 2008 she stated she began to hear ringing in her ears and she had difficulty understanding sound on her television.  Her studies reflected only high frequency hearing loss which is not compensable in Missouri.  Her expert concluded that her hearing loss was traumatic  and that produced tinnitus and that claimant could not work in jobs that required "normal" speech.    The Second Injury Fund relied upon expert testimony that her primary condition was not occupational and better explained by age or use of several medications for numerous chronic cardiac and orthopedic conditions.  Her vocational expert felt she had problems communicating.

The ALJ found her expert more persuasive that claimant' tinnitus was occupational and awarded total disability benefits against the Fund based on testimony that prior conditions limited her to sedentary work and difficulties to communicate combined to produce additional limitations. 

One commissioner indicated claimant failed to prove she had a disability from tinnitus and was not entitle to Fund benefits based on 287.220.1.  The statute indicates that objective findings prevail over subjective findings.  The commissioner noted expert opinion that an objective speech reception test which was normal objectively negated that any "ringing" in the ears caused an impairment in an ability to communicate.  The award contains conflicting expert opinion whether she had normal speech recognition or not. 

Wednesday, September 2, 2015

"Drug use" for pain supports SIF claim

The Commission reverses a denial of second injury fund liability and awards claimant permanent total disability benefits based on his reliance of narcotic medication in the past to work in an unrestricted job of 40-60 hours a week.  Don Elliott v Don Elliott dba AAA Stone, 2015 MO WCLR Lexis ___ (Sept 1, 2015).

The case involves a 61-year old man who owned and operated his own mason business.  In July 2005 he went to a scrap yard and fell out of his truck when the tail gate broke.  He pursued worker's compensation benefits in Kansas after he had a two-level back fusion  and he was awarded more than $100,000 based on a finding of permanent total disability benefits because of a "failed back syndrome."    He claims he requires daily medication and must take breaks to control pain.

The claimant in this pre-reform case  pursued this claim against the second injury fund.  A vocational expert concluded he was unemployable given his restrictions and use of narcotics and  his unpredictable need to lie down.

The ALJ  denied SIF benefits and found that claimant did not have an accident or injury that flowed as a natural incident of work of being a mason and that the last accident alone established claimant was totally disabled.

The commission reversed.  It found claimant had prior disability from  a prior back surgery and treatment for chronic back pain leading up to the recent accident. Claimant's prior back injury, in fact, involved a very similar mechanism of injury.    It finds that claimant's expert finds any restrictions or total disability flowed from a combination.

The Commission noted the Fund offered no expert opinion to support its denial, that it repeatedly solicited testimony unfavorable to its defense, and that it now mischaracterizes the testimony on appeal:

"every time he was invited by the Second Injury Fund to agree that the 2005 back injury alone rendered employee permanently and totally disabled, Dr. Koprivica answered that it was instead employee’s overall low back disability...."
The Commission further rejected the SIF argument that claimant "was working" before the primary injury.  The commission noted that claimant was working because he had broader discretion to accommodate himself  than as owner.

The case is important too to address the importance of stipulated disputes at the beginning of a hearing.  The Commission notes the parties  did not identify a dispute whether the accident arose out of employment and the ALJ may have exceeded his authority addressing the issue by making findings adverse to the claimant.  The SIF then consented for the Commission to review that issue, and had their denial reversed.  The Commission rejected the defense that "arising out of" was defined solely by job title but it was defined by job activities, which in this case were very broad as claimant was not just a mason but the owner of the company. 

The Commission found that claimant had a 35% PPD disability as a result of the primary injury and PTD against the Fund.  The employer had already settled the primary case for PTD, so the finding has the effect of establishing when the SIF full weekly benefits begin.

Atty:  Kolich, Fournier
experts:  Koprivica, Terrington

video tape issues

Missing video and spoliation of evidence
Missing video of an accident scene invokes the spoliation doctrine if destruction or significant alteration  of video was intentional and not negligent.  In a case in which the tape was automatically written over after a certain period of time, the destruction was not found to be intentional.  Pisoni v Steak and Shake Operations, Inc., ED 101976 (Mo. App. 2015) (Sept. 1, 2015).

The spoliation doctrine only allows an adverse inference to admit the missing evidence would have been unfavorable but does not prove the case.  DeGraffenreid v. H.L. Hannah Trucking Co., 80 S.W.3d 866, 874, 878 (Mo. App. W.D. 2002) (error for Commission to infer absence of log book proved driving excessive hours caused medical condition).  In Pisoni the defense produced a witness to show warning "wet floor" signs independent of the video evidence and offered alternate medical theory based on Dr. Rende testimony that the plaintiff's torn meniscus was degenerative and not traumatic.   

Subpoena requires production of video
Those "gotcha" moments may now be a thing of the past. The court of appeals  requires the carrier must turn over videos when requested by subpoena pursuant to 287.560. The Act specifically bars the release of videos as "statements" pursuant to 287.215 and finds videos are not "statements," as part of legislative reform in 2005. The court of appeals concludes that the legislature could not possibly have meant to bar the production of videos, and meant to limit the discovery of videos only in response to the informal statement demand requests based on 287.215. The court rejected that the more specific directives of 287.215 should control over the general rights of discovery described in 287.560.

Claimant alleged he tripped over carpet in 2008. The court found no abuse of discretion by the circuit court to order the release of any video. BSF has appealed the permanent order of mandamus compelling ALJ Fowler not to quash the original subpoena. Feltz v Bob Sight Ford Inc. 341 S.W.3d 863 (Mo. Ct. App.  2011).

atty: Shoeppey, Kenter

Employer allegedly taped wrong person

In a case of mistaken identity, claimant contends that the employer's videotape did not show him working but videotaped his stepson working under a car instead. ALJ Landolt dismissed the impact of several days of surveillance capturing only 2 1/2 hours of video of questionable quality, and awarded the 56 year old claimant with a back fusion permanent and total disability benefits.

Claimant injured his back and underwent an two level fusion at L4-S1. Claimant returned to work and days later reported a new accident, and ultimately underwent a "redo" posterior fusion at L4-L5. The initial surgery may have been a failed fusion, although claimant reports new symptoms following his subsequent accident. Claimant never returned to work and despite a 2007 MMI release he continues to receive pain management from Dr. Kennedy, a surgeon originally picked by his employer. Claimant's expert contends he requires narcotics indefinitely.

Claimant recovered 30% for his 2001 accident, another 30% for his 2004 accident, open medical, and PTD against the second injury fund. ALJ Landolt concludes any "credit" for about $85,000 in overpaid TTD benefits should be resolved among the defendants and not claimant, since both defendants shared the same carrier. Claimant received 1/3 million in medical and TTD benefits prior to the award. Balch v Brambles Equip Services, DOLIR 5-17-10.

Attorneys: Wagner, Lori, Osborne
Experts: Bernardi, Kitchens, Mishkin, Musich, Shea, England
Treater: Kennedy
ALJ: Landolt

Monday, August 31, 2015

Commission finds "squatting" a work hazard

In a never ending search for work-related hazards, the Commission has now found a new one: squatting.  Cotner, dec.  v Southern Personnel Management, 2015 Mo WCLR Lexis 82 (Aug. 20, 2015).

To be more precise:  the finding was not just squatting but squatting on a hill and a very steep hill at that.   The employer considered the whole claim of its employee falling down after squatting a little dodgy:  everyone squats, there’s nothing occupational here, and essentially there was no real  “risk”  as the worker already had bad unstable ankles.    Even in the appeal the employer suggested the ALJ was just dreaming up risks to plug the case into a “show me the risks” Johme template.   In the end, the Commission affirmed.

This may seem somewhat shocking to safety-first Missouri employers who spend all that time attending ergonomics classes to get nice OSHA certificates on the walls, to get everyone wearing hard hats, and pay attention to warning signs, and then getting tagged with a big comp bill because the world is not flat.  One rationale behind comp after all is  that comp is the no-fault safety net when risk management can't manage all the risks.    This case isn’t about  loose railing or dangerous machinery.  This is another sad story of another older guy losing his balance and breaking his hip and that is a risk that a room full of risk managers is never going to stop.
Claimant was a driver who took folks to time share units.  He went to the front of the shuttle to check on the air conditioning (this is Missouri in June) at the request of the mechanic to figure out what kind of noise it was making.  The Commission noted that he fell down and was stuck on the ground for 20 minutes until anyone noticed that something was wrong and his cell phone was just out of reach.  

The ALJ noted that “there was a significant slope going downhill from where employee was squatting to listen to the air conditioning compressor. As Mr. Cotner stood up and stumbled backwards, the nature of the sloping parking lot enhanced the stumble backwards” and “it was noted that this summer day the temperature was very hot, and near the place of accident parts of the pavement had been repaired with tar or asphalt sealant. This tar or asphalt sealant, impacted by the heat, could provide a sufficiently sticky substance to offer an explanation for the foot sticking to the pavement.”  

This accident is in Taney County, home of Branson, many twisty roads  and many more  slow moving RVs. 

The employer appealed that claimant failed to identify a specific risk. The Commission said it didn’t matter;   squatting alone on a hill was enough of a risk and that the employee did not have to get lost in the details to identify a rock, a sticky surface, etc.  Here’s the rub:  comp is supposed to be informal and summary and there’s no need to get into all that detail.

 We find, as a factual matter, that it was the risk or hazard of squatting down on a significant incline and subsequently stumbling or falling from which employee’s injuries “came” for purposes of § 287.020.3(2)(b). It is therefore unnecessary to determine what (or whether) any additional, environmental factors may have contributed in causing employee to fall.”
The case applies this comparative risk analysis both against the claimant personally and against workers generally.  Since the employer did not put on any evidence that claimant had similar non-occupational exposure, the employer loses that defense.   The message is clear:  stop denying benefits based on 287.020.3(2)(b) because the rock will always be bigger, the crack will always be wider, and the sun will always be brighter when a worker is  injured on the job. 

The case teaches another message how the Commission views these cases through a  management-labor prism.  It is not just the existential risk where an accident occurs.  The risk is not the hill  or the squat but putting certain employees with certain weaknesses in harm’s way.  The Commission notes that the claimant was “68 years old…” and that he “suffered from bilateral ankle instability” and “especially in light of these facts….” Maybe, just maybe, the Commission seems to suggest there is a better way to fix a van with problems than having this guy park it and try to figure out what funny noises it was making.