Monday, June 27, 2016

Prankster denied benefits for starting fire

The Commission denies benefits to a person who burned himself after he intentionally lit a can of industrial adhesive on fire to startle to co-worker.  The injury did not flow from a risk associated with his employment.   Hedrick v Big O-Tires, 2016 MO WCLR Lexis 34 (June 22, 2016)

The parties stipulated the prank involved substantial injuries representing 45% disability of the body and involved disputed medical costs of $261,173.  The claimant  lapsed into a coma  and woke up in the hospital with no memory of the event.

The administrative law judge found that  the employer accepted horseplay on its premises, including a variety of "silly" behavior such as "greasing door knobs, blowing air at an employee in the bathroom, snapping a rag in an employee's direction and placing  inappropriate objects in a co-worker's toolbox."  The administrative law judge, however,  found the claimant  "failed to demonstrate a causal connection between the duties of his employment at Big O Tires and intentionally lighting a can of glue held in a co-worker's hand on fire with a lighter. Mr. Hedrick himself testified that there was no function of his employment at Big O Tires that involved setting a can of glue on fire."

The 2-1 Commission affirmed a denial  benefits.  It noted "the risk bears almost no relation to the employment whatsoever. Any employee can choose to mishandle or misuse dangerous materials in such a way as to introduce new risks and hazards into the workplace; but this choice, standing alone, is insufficient to implicate workers' compensation liability for consequent injuries sustained by such an employee."   The presence of dangerous materials, a tolerance of mild horse play, did not make playing with dangerous materials a risk associated with employment. 

The Commission noted the co-worker burned in  the event was entitled to benefits because it arose from an unprovoked and neutral assault. 

The dissent argued that when an employer allows "rampant" horseplay and that injuries are compensable and related to a work risk whether or not the horseplay in the past involved "potentially dangerous" horseplay.  The dissent asserted that claimant's only burden was to show a risk of potentially dangerous employee related to employment, relying upon  Pile v. Lake Reg'l Health Sys., 321 S.W.3d 463 (Mo. App. 2010),.

The commission noted: "the administrative law judge interposed an additional issue that the parties did not specifically identify--whether employee's injuries arose out of and in the course of the employment--and ultimately denied employee's claim based upon a conclusion that employee failed to meet his burden of proof." The parties briefed the issued without further clarification whether the parties intended the "arising out of issue"  to be within the original stipulated issues.

ALJ  Fischer

Temporary benefits awarded for worker with chronic cuff tear

In Stieferman v Optima Graphics, 2016 Mo. WCLR Lexis 32 (June 20, 2016) , claimant tripped over a roll of fabric and injured her shoulder in April 2014.  Claimant had a similar injury a few weeks later when she returned to work. 

Dr. Hobbs testified that claimant had chronic shoulder pathology with retraction and atrophy, and that falls can aggravate degenerative conditions. 

Dr. Emanuel testified that the accident caused an acute tear on a prior asymptomatic full thickness tear. 

The employer contends there is no new disability and no new medical condition.  The ALJ found the accident increased the size of the tear, and accepted the opinion of claimant's expert.  The doctors disagreed regarding how soon retraction can occur, the role of fatty infiltrates, and how long it takes the humeral head to migrate.   The ALJ noted that Dr. Emanuel had more extensive surgical experience which added to his credibility.

The ALJ found claimant's first accident to be the cause of her need for treatment, and denied liability on the second claim.   2016 Mo WCLR Lexis 33. 

ALJ Carlisle
Atty:  Korte, Welz

Commission modifies SIF award to allow total benefits

In Hacker v Texas Book Company, 2016 MO WCLR Lexis 31 (June 20,2016) the claimant alleges he hurt his spine and shoulder throwing some boxes.  The claimant pursued a claim for total disability benefits against the Second Injury Fund as a result of multiple prior orthopedic conditions including "failed" neck and back surgeries.  The Commission modified the award from permanent partial to permanent total disability benefits against the Fund.

The ALJ found on the basis of claimant's prior conditions he had more than 90% pre-existing disability.  The Commission found the determinative issue was not whether claimant was physically capable of performing work but whether he was capable of competing in the open labor market.  The Commission found that an expert  opinion that claimant was not capable of competing in the open labor market from his non-treating expert satisfied this burden without further vocational opinion.  Claimant had returned to work, but the Commission concluded the job was not obtained in the "open" labor market. 

ALJ:  Dierkes
Atty:  Allen
Experts: Volarich

Tuesday, June 14, 2016

Court rejects "similarly situated" standard for stress claims

Prior to reform in 2005, a worker who claims work-related stress had  to prove that the stress was extraordinary and unusual based on objective standards and actual events compared  to similarly situated employees.. Williams v DePaul, 996 S.W.2d 619 (Mo. App. 1999)  had the effect of making it harder for workers  to prove stress claims when the nature of the job was inherently stressful in the absence of some experience that was truly unexpected or unusual.  Mantia v Mo Dept of Transportation, ED 103016 (Mo. App. 2016) (June 14, 2016), has now reversed Williams and finds the legislature when it threw out liberal construction  really wanted to make it easier to prove stress claims. 
Mantia was a state employee who claims her job caused PTSD.   She filed a claim in 2008.   The fight was an issue of statutory interpretation.  Both experts agreed that she had a mental problem from work but disagreed on what to call it and how much disability it represented.   There was uncontested  proof that she experienced extraordinary or unusual conditions dealing with accidents scenes and catastrophic injuries. the Commission did not find such experiences spread over a 20 year career was any different from a similarly situated highway worker.

The court found sufficient evidence that claimant sustained an occupational disease and affirmed an award of 50% disability with open medical.    MoDot contends that claimant failed to establish an occupational disease because she did not introduce evidence of extraordinary stress compared to similarly situated employees. 

The court noted that 287.120.8 requires “objective” standards, it does not define what it means by that term, and finds the statute does not “unambiguously” compel the use of “similarly situated employees”, a standard that Williams derived from other states.   The court further notes that 287.020.10 abrogated prior holdings and it was forbidden to use the old standard. 

The court found that described uncontested verifiable events were extraordinary.  Neither expert questioned causation.  The Court deferred to the Commission’s finding of fact regarding allocation of disability.   The court found evidence in MoDot’s own expert’s opinions to support open medical.  
In the Commission case,  2015 MO WCLR Lexis 39, the Commission found that claimant had established she had a  major depressive disorder, rejected her claim that she was totally disabled and her expert’s assertion that she had PTSD.    The commission noted that neither expert was particularly persuasive.  Claimant began treating in 2008, and treating physicians did not identify any causation between her condition and her work.

In 2005 reformers imposed “strict” construction rather liberal construction.  This change has had many unintended consequences in which appellate courts  expanded benefits rather than contracting them.  Mantia  finds the legislature somehow intended to abrogate Williams without identifying  Williams  in 287.020.10 when other cases were expressly abrogated. . The court of appeals reached a completely opposite interpretation of 287.020.10  in Wright v Treasurer of MO, 484 S.W.3d 56 (Mo. 2015) as a rationale to preserve the personal comfort doctrine. 

Mantia now enables great access to benefits in jobs that are inherently stressful.  This shift the focus of “objective” standard to look at the inciting cause and not other employees.    Mantia may be easily distinguishable on its facts from stress cases in the future because of the unusual nature of the factual allegations. It is a warning to employers that litigating claims may result in high awards when causation is not contested even when the course of treatment is short (the case litigated for 8 years, claimant saw a doctor less than 2 years)  and the documentation of a work connected problem  in the medical  file is "thin." 

Friday, June 10, 2016

Court rejects co-employee tort claim for not stopping worker 'too sick to drive.'

in Parr v Breeden , 2016 MO Lexis 188 (June 7, 2016) the Missouri supreme court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident.

The plaintiff worked for Breeden Transportation.  The worker was involved in multiple accidents in 2006, and two accidents in 2008, the last resulting in a fatality when his vehicle left the road.

The petition alleged that the driver had multiple health conditions including severe heart disease, apnea and it was the employer should have known his health condition posed risks to his capacity to drive safely.

The suit named the company owner, a company dispatcher and the company director of safety. 

"The plaintiffs raise two points: (1) the circuit court erred in granting summary judgment because [7]  genuine disputes of material fact exist as to the defendants' negligence in that the defendants admitted they had a duty to ensure all of Breeden Transportation's drivers were safe to operate a commercial motor vehicle, the defendants knew or should have known Mr. Parr could not safely operate a commercial motor vehicle, the defendants caused Mr. Parr's death by placing him on the road the night of the fatal accident, and the plaintiffs suffered damage as a result of Mr. Parr's death; and (2) the circuit court erred in entering summary judgment because there was a genuine dispute of material fact as to whether the defendants breached their duties, separate and apart from the employer's nondelegable duties, that arose from federal regulations."

The element at issue in this case is the existence of a duty owed by the defendants to Mr. Parr.

The plaintiff relied upon deposition testimony that employer witnesses acknowledged a duty that their drivers operated safety.

"Here, the plaintiffs' evidence fails to establish that defendants owed Mr. Parr a duty separate and distinct from the employer's nondelegable duty to provide a safe workplace. Accordingly, the plaintiffs cannot establish that the defendants owed Mr. Parr a duty as a matter of law; therefore, the circuit court did not err in entering summary judgment in favor of the defendants."

The court rejected the argument that a breach of a federal rule is sufficient proof of the existence of an independent, personal duty in a negligence action.  The plaintiffs mistakenly construed a federal rule to create an independent duty by the motor carrier to independently investigate the cause of accidents. 

The case arose during a former legislative "gap" in Missouri that permitted co-employee suits based on common law standards. 

Court dilutes something more test

 So when can an employee sue a supervisor for an injury on the job?

Under worker's compensation, the rule prior to 2005 required proof of "something more" (the Badami rule) than a mere breach of a non-delegable duty of the employer to provide a safe work place.

When Missouri in 2005 changed and reformed its worker's comp law, one unintended consequence was to create a gap  to lose the exclusive remedy defense for co-employees and allow an  injured employees to sue other employees.   The court in Robinson v. Hooker, 323 S.W.3d 418, 424-25 (Mo. App. 2010) concluded this was the result of reformers imposing  strict construction, despite the dubious inference  that result someone reflected legislative intent. 

After the Robinson case, the legislature in 2012 closed that window that  allowed co-employee liability except  in cases of affirmative negligent act that purposefully and dangerously caused or increased the risk of injury, adopting by legislation essentially restoring the pre-reform "something more" rule  State ex rel Badami v Gaertner, 630 S.W.2d 175,180 (Mo. App 1982),

The Supreme Court in Peters v. Wady Indus., 2016 Mo. LEXIS 189 (June 7, 2016)  recently addressed an issue of liability in a "gap" case between 2005 reform and the 2012 fix.  Ultimately, the court affirmed a motion to dismiss from  the circuit court and court of appeals that the plaintiff failed to state a claim.  The case involved a stack of construction material (dowel baskets) falling off of a flatbed truck resulting in catastrophic injuries to the plaintiff.  The plaintiff alleged the items were negligently stacked, among other claims. 

Peters filed suit against his supervisor and his employer.  When the court dismissed the suit against the supervisor, the plaintiffs voluntarily dismissed their claim against the employer.  The court of appeals affirmed the dismissal, with one dissent.

The standard of review in a motion to dismiss assumes all allegations to be true and tests the adequacy of the petition to state a claim.  Applicability of worker's compensation is an affirmative defense and not a limitation on the court's jurisdiction. 

This case is important as the court redefines the burden of proof for common law cases (arising before 2012) and the requirement of courts to show "something more" in those cases mistakenly required proof of affirmative acts, which it now concludes was contrary to common law.  The effect, is that an appropriately pled case  likely avoids the procedural defense of a motion to dismiss.   As a practical matter, the number of cases  before 2012 that have not been filed yet may be a small number and the new statutory test (applying essentially the pre-reform standard) will apply.    

Two justices disagreed with departure from the "something more" test that required proof of affirmative action to proceed in tort outside of comp.  The majority noted two cases (an exploding cement truck and a malfunction causing a runaway elevator) to demonstrate liability under the less stringent standard.   

One dissenting justice felt claimant's case should proceed in tort. 

Tuesday, June 7, 2016

Commission reduces charges unsupported by medical bills

The commission reduced an award of medical bills because the bills were not supported in the record by corresponding medical records,  had cryptic notes or  inadequate documentation to show they flowed from a work injury.  Frost v Coin Acceptors, 2016 Mo WCLR Lexis (May 26, 2016).
The case involved a 62 year immigrant who worked 30 years for an employer and had a massive tendon tear in her shoulder.  The employer declined to tender care after she filed a claim.

The employer defended the case on expert testimony that claimant's job wasn't that hard, that at age 62 she had degenerative findings, and it was not credible that she would have a trauma to produce a 22 mm cuff tear and have it go unnoticed. 

The ALJ rejected the proposition that the job was not that hard and adopted the opinion of claimant's expert, an emergency medicine doctor, that her injury flowed from her work.  The ALJ further noted claimant was highly credible that she put up with pain and suffering, and her desire to work unless she was bleeding. 

The ALJ affirmed the award for the right shoulder from lifting and partial disability to the left shoulder as a compensatory injury.

The Commission reduced the bills but suggested claimant could have pursued reimbursement   for the paid bills.  It noted the ALJ "undervalued" the specials by awarding only  outstanding charges, but notes the claimant did not preserve the issue either in the brief or in an application for review. 

The employer failed in its defense, resulting in an award of more than $86,000.  On appeal, the award was reduced about  $5000  to about 94% of the original award.  The employer had tendered care until claimant quit her job, and tendered no further care after she filed a claim.

ALJ:  Mahon
Atty:  Nelson, Kornblum
Experts:  Mullins, Burke