Monday, November 17, 2014

Welcome, sulfur dioxide; Hello Carbon Monoxide....

It was something in the air that killed him, and more likely than not it was Brazilian air, concludes the Commission in an award of death benefits to a business traveler who became ill quickly after returning to Illinois after interview job candidates.  Omron Electronics v The Illinois Workers Compensation Commission, 2014 Ill App. 130766WC (Nov. 14, 2014).

After a short trip to Brazil of about 36 hours, the worker returned to Illinois with flu-like symptoms and then developed purplish spots over his body.  A few days later he died from Neisseria bacterial meningitis. (meningococcemia)

It was something in the air.  Brazil might be known for many wonderful things, but  the experts agreed Brazil had 3-6x the incident rate of meningitis.  The incubation rate of 2 days was consistent with claimant's worsening condition, even though he had some respiratory symptoms before the trip and  incubation could take a lot longer.  The case is a prime example of applying increased risk to a point of absurdity. 

The employer objected there was insufficient evidence to award benefits and  no evidence of a specific exposure from a specific person or even a history of high-risk exposures such as contact in crowds.  Illinois does not require proof of the etiology of the disease from direct connection, it requires only a causal connection.  The deceased could have had exposure to  one bad droplet anywhere:  airports, cabs, offices. Just because he could have met 99,995 Brazilians who didn't have the disease, it didn't mean he couldn't have met  the 2-5 persons in 100,000 who might have had it.

The Commission awarded the special administrator death benefits, burial  expenses, and reasonable and necessary medical expenses in the amount of $10,359.69.

Thrill ride owner gets a break on bumpy landing

In the end, it was all about instructional error to the jury.  Chavez v Cedar Fair, LP, SC 93658 (Mo. Nov. 12, 2014). 

A 12-year old in 2000 went with her family to Oceans of Fun and lost  two front teeth at the bottom of a 71- foot water slide when for some reason she no longer held onto safety straps and her head bumped into her cousin.  Her lawyer  claimed someone should have warned her that she might bump into someone and something should have made the ride safer to prevent collision. 

A jury came back with $225,000.  The court dumped the verdict and sent the case back to allow a comparative fault instruction  and to use the proper  jury instruction about standard of care.   The park felt the court wrongfully refused to allow its jury instructions on comparative fault.  The defendant also asserts the jury employed the wrong standard of negligence and the defendant needed to show not just a breach of the highest standard of care but a breach of ordinary care.  The court  agreed that the highest standard of care applied to a narrow set of circumstances such as common carriers or activities that had a risk of widespread injury.   The Supreme Court relied upon McCollum v Winnwood Amusement Co., 59 S.W.2d 693 (Mo. 1933) and disregarded other cases which appeared relied upon by the plaintiff to support a higher standard of care.  The court of appeals found there was insufficient evidence that the respondent negligently or unreasonably let go of the straps.  Riders were repeatedly warned not to let go of the straps.  It is unclear how the jury came back with that number for what appears to be limited medical specials. 

The plaintiff argued that the raft should have had some sort of baffles to separate the riders or had some slip resistant coding to reduce rider sliding.  Hurricane contends its design was state of the art and while people may bump into each other on the ride due to the thrill of an unpredictable and variable descent the biggest source of injuries were riders getting out of the raft when the raft stopped.   

While its clear the "ride" isn't over until it's over, the thrill probably is gone now after 14 years since the accident. 

Wednesday, November 12, 2014

Lamactil linked to bizarre skin condition

A Missouri jury recently awarded more than a half million dollars in a malpractice claim when the plaintiff developed a bad skin rash from an anti-depressant and claims a nurse practitioner should have told her to stop using it.   Huelskamp v Patients First Care, ED 100686 (Nov. 12, 2014).

Plaintiff in November 2008 saw a nurse for depression and was given Lamactil.  The next month she continued to use Lamactil.  A second nurse practitioner placed the plaintiff on antibiotics.  Plaintiff argued the nurse did not research the side-effects of Lamactil and should have told her to stop using it.   She ultimately went to see a dermatologist who took her off the drug.

Although plaintiff discontinued Lamactil, her condition progressed and she went into the hospital for 3 weeks.  A rash covered 98% of her body and her skin turned black.  She alleged Lamactil caused Stevens Johnson Syndrome and toxic epidermal necrolysis.  She provided expert testimony that if she stopped using Lamactil at the first visit her medical condition would have worsened.

Lamactogine can be used to treat bipolar disorder and seizure disorder.  Huang, 2010 Dec;3(4):240-2; Toxic epidermal necrolysis after sun-exposure probably due to lamotrigine and chlorpromazine. Lamactogine produces a benign rash in about 1 in 10 cases but in a small fraction can cause SJS-TEN. Kumar, 2005 Apr;47(2):121-3.Stevens-Johnson syndrome-toxic epidermal necrolysis (SJS-TEN) overlap associated with carbamazepine use.

Newly prescribed medicines sometimes have rare and bizarre risks.  Claimant sought damages for lost wages, medical bills and pain and suffering.  The defense asserted that plaintiff should have stopped using the drug on her own when her condition became worse and asserted the first nurse who gave her medication warned her about the dermatological risks.  The defense did not offer a comparative fault instruction.

The take-away from comp is that medications for some conditions may trigger unintended consequences.  The failure to closely examine changes in medications may ignore important explanations for new symptoms. 

Friday, October 31, 2014

New decisions warn Missouri employers in comp cases

A lot has been going on in Missouri in worker’s compensation in recent court decisions.

Easier wrongful discharge suits against employers

Templemire v W&W Welding, Inc., 433 S.W.3d 371 (Mo. 2014) slammed opened the door for more suits against employers who fire workers after their comp injuries.  It lowers the burden of proof of discrimination from an exclusive factor to a contributing factor.
The relationship with his supervisor was contentious as claimant obtained new permanent restrictions.  When claimant refused to perform a task and insisted he was still on his break, the employer fired him for insubordination.  In some respects, the case was the classic example of 'be careful of what you ask for.'  The employer coached his employee to stop "milking" his injury and if he didn't like it he could  "sue him for whatever reason, that's what he pays premiums for and the attorneys."

Reactivation provision triggers more care
Pierce v. Zurich American Ins. Co., WD 77095 (9/9/2014 Mo Ct. App. 2014), 2014 MO App. Lexis 968,  involved a case in which the employer appears likely to get stuck with the cost of a total knee replacement when it disputed causation and settled the case a month earlier.

 A month after the settlement claimant demanded more treatment for a total knee on the reactivation statute, 287.140.8.  At the time claimant knew he would need a total knee replacement in the future.   The carrier disputed any need for a TKR flowed from the accident.  An important issue in the case is that the employer agreed to leave medical open for a year, it adopted “boiler plate” language to adopt 287.140.8 as a term of the settlement, and it did not specifically exclude conditions or treatments which it disputed.  The carrier refused to authorize the requested treatment based on expert opinion that any TKR was not work related.  The decision was basically a jurisdiction issue and that claimant had to fight his fight with the Commission first and not in court.  At its core was a warning that agreements to leave medical open may leave the employer on the hook whether they dispute causation or not.

The case didn’t address the bigger issue whether statutory  re-activation could be waived with consideration to a represented claimant  or whether the entire provision may be redundant as a matter of public policy as MSAs have pre-empted future medical within the purview of 287.140.8.

Commission closely scrutinizes settlements

The commission has always exercised its statutory authority to approve or gut settlement proposals.  Hinkle v A.B. Dick, 435 S.W.3d 685 (Mo. App. 2014)   is important for two reasons:  it shows what the Commission tried to do, and it shows what the Commission had authority to do. 

The Commission thwarted approval of the settlement because it considered a settlement that did not represent the commutated value was not in accordance with the rights of the parties.  The court disagreed.  The Commission’s only proper statutory standard for approving a settlement was whether there was of undue influence or fraud, the employee fully understands his or her rights and benefits and voluntarily agrees to accept the terms of the agreement.  What is important to remember is that he worker was represented by counsel.

Equal exposure defense gutted

The court of appeals in Scholastic v David Viley, WD 77546 (Oc. 28, 2014) rejected the employer’s argument that a case was not compensable if claimant had an equal exposure to the hazard of falling in icy parking lots away from work because equal exposure according to the court exposure to the same hazard at the same place.  This interpretation conflicts with other cases and means that equal exposure may no longer serve as a viable defense except in very rare cases just as the icy season approaches. 

 Fitness for duty exam sinks employer

A jury awarded $50,000 in compensatory damages and 1/2 million in punitive damages. Bowolak v Mercy East Communities fka St. Johns Mercy Medical Center, ED 100502 (Oct 28, 2014), 2014 MO  App. Lexis 1219, when an employer fired claimant with an open back comp case because it appeared he had obtained a physically demanding job when records suggested he may had permanent restrictions when he was hired after a prior back surgery.

The employer obtained fitness for duty exams which indicate claimant could work unrestricted duty after a prior multi-level back surgery.  The jury questioned the employer's reliance upon an older document inconsistent with the employer's own doctors.   

No equal exposure defense for parking lot fall

A worker who injured his knee falling on a snowy adjacent parking lot while leaving work was awarded benefits.    Scholastic v David Viley, WD 77546 (Oc. 28, 2014)

The ALJ denied benefits.  The commission found that the employer "controlled" the lot and the case was compensable even though it did not own the property.  The employer asserted it had not much control over the lot and that claimant had equal exposure of falling on ice away from work. 

The court found that there was evidence to support the finding that the employer controlled the lot.
 287.020.5 requires that claimant show the employer controlled the lot if it didn't own it because statutory reform abolished compensation for parking lot injuries that arose on property not owned or controlled by the employer.  The court relied upon a lease provision that allowed the employer to exercise control to exclude visitors and that the employer in the past had excluded persons and required the landlord to maintain the lots as a condition of the lease. 

The court noted since claimant was "at work" and the accident arose out of a hazard (ice) while doing the employer's business  (leaving work) and there was no equal exposure defense under 287.020.3(2) of the "specific" risk because claimant had never been exposed to ice at the exact location when he was not working.  The court relied upon Duever v All Outdoors Inc., 371 S.W.3d 863 (Mo. App. 2012), another slip on ice case, that claimant only needed to show they were at a hazard of slipping on ice arose because exposure to ice was a condition of employment.  Similarly, in Dorris v Stoddard County, 436 S.W.3d 586 (Mo. App. 2014) the claimant fell on a street crack and the employer lost on the equal exposure defense that just because claimant  never encountered the hazard of slipping on the specific crack involved in the accident.  

The equal exposure defense requires consideration  that work is a different hazard or an increased hazard to access comp benefits and not merely that it is different solely on location alone. Viley,
 like Dorris, produces an absurd result that  limits the employer's defense of equal exposure so narrowly that 287.020.3(2)(b) applies only upon proof that claimant sustained the exact hazard in a non-employee capacity in exactly the same location before the accident.   If a worker is injured on property that is not open to the public there can never be an equal exposure defense because only employees would be equally exposed.    Viley follows Dorris  like a lemming leaping off a cliff into a drop of absurdity.


Wednesday, October 29, 2014

hospital owes 1/2 million punitives after firing comp claimant

A hospital worker claimed he was discriminated based on the MHRA when he was fired because he was deemed unable to perform essential job duties based on permanent restrictions of a doctor who fused his back  for a work comp injury with a prior employer.  The restrictions surfaced as part of an investigation when he reported a new back injury.  Bowolak v Mercy East Communities fka St. Johns Mercy Medical Center, ED 100502 (Oct 28, 2014), 2014 MO  App. Lexis 1219   A jury awarded $50,000 in compensatory damages and 1/2 million in punitive damages.

He disclosed the prior worker's compensation injury when he was hired and indicated that he required medication for his back. He stated he was completely unaware of permanent restrictions from his former doctor.  The court questioned whether the restriction was permanent or not based on a description of restrictions "at this time."  The hospital obtained several physical exams which did not trigger restrictions.  The hospital refused a request from EEOC to re-instate the worker.

The worker pursued a cause of action under 213.111 which required the worker to show:  he is legally disabled, he was discharged, and the disability was a factor in the discharge.  The worker established a record of impairment by a previous settlement of 32% and his representations when he was hired that his back was never the same and that he was regarded as disabled because he was fired on the prior restrictions that he couldn't do his essential job duties.  The jury rejected the defense that the hospital's invitation for him to reapply for something else was not the same as a discharge.  The worker also established that discrimination was a contributing factor. 

The court concluded: "the use of a seven-year-old document as a basis for termination of a good employee was at a minimum reckless misconduct by Mercy " and found the hospital acted "reprehensible" and "outrageous."   The worker relied upon an opinion from a defense expert in the prior comp case that after a fusion he did not require any permanent restrictions.  The court allowed the jury to see the prior comp settlement of 32% but did not allow the jury to see that he recovered nearly $55,000 in the earlier because because it deemed the actual monetary recovery too prejudicial. 

The new worker's compensation claim to his back involved pushing a 500 pound cart.  He was employed as a care service associate.  The restrictions in the earlier case limited his capacity to 50 pounds. 

The court awarded $81,500 in attorney's fees and noted a "reasonable" rate of $250 an hour after it reduced the submitted fees by about 10%.    The court further granted an additional  motion of $17,650 in attorney's fees.  The court noted the worker did not seek to recover time in pursuit of comp benefits in the new back injury. 

Several things are interesting about the decision from a comp perspective.   The suggestion is that  claimant misrepresented his capacity to work and as a result of violating his work restrictions he has triggered a new comp claim to the same party of the body.   The lesson to the employer is that it has created its own problem by a securing a fitness for duty exam that perhaps was a little too cursory and allowed a person with a two level fusion to go back to pushing 500 pound carts.  The court notes the worker  asserts he "didn't know" about  for prior restrictions.  It is unclear whether he obtained any expert opinions in the prior case that may have addressed capacity to work before settling a case for nearly 1/3 of a man.   

Hoff, Sullivan, Hess (Div 2)
Atty:  Radice, Paul (Ogletree)



Tuesday, October 28, 2014

Light duty and suspended animation

The court of appeals dealt recently with a common problem to many employers:  what do you do with the claimant who is on light duty until further notice?  Atwill v Fitzimmons, 2014 mo App. Lexis 1181 (Oct 21, 2014).

Fitzsimmons was a state employee for the department of corrections.  He fell out of his truck and hurt his ankle.  After six months he still wasn’t back at work.  The state had enough and sent him packing.  They normally would have kept him on light duty because they had a policy on accepted claims to allow light duty but on disputed claims employees could only stick around as long as their FMLA and PTO lasted.    They thought Fitzsimmons didn’t have a compensable case so:  hit the road, jack.

Fitzsimmons sued.  He claims he was entitled to comp benefits.  He sued to get his job back on appeal as a public employee on the merit system.  The AHC under the statute could let him go back to his former job but couldn't tell him to go to a new job.  Instead, the AHC told the employer to get him light duty.  The court told them AHC did not have the authority to do that, which effectively left Atwill still out of a job with a chance to reapply when he met the physical requirements to go back to driving.  It's not really a termination:  it's a sabbatical. 

The court pointed out that Fitzsimmons  always had a remedy through comp to get back pay through TTD if his injury was really  job related and if he was let go for exercising his comp rights he could have another claim for retaliation.  The slow progress of the comp case is not explained.   AHC committed a comity of errors to not let the Commission first decide if he had a compensable injury or not.  In effect, AHC was slapped doing more than it had to do and trying to carve out a remedy of light duty that was offered to other state employees. 

The court in Atwill  reminds employers that life is filled with hard choices.  Every comp decision has attendant risks.   Don’t provide benefits and the Commission can snap back with back pay and sanctions.  It suggests that that DOC may have some good faith reasons to question the accident but at the end of the day it didn’t mean they would prevail or that DOC might not get sanctions for firing the claimant.   The court seems to suggest there may be something in 287 to require an employer provide accommodation.    There may be federal remedies for failure to accomodate but there is no statutory cause of retaliation under 287 for a breach of a duty which does not exist.