Wednesday, July 1, 2015

Wrist injury not arising out of wringing a rag

A 60-year old housekeeper failed to prove wringing out a rag was the prevailing factor to an injury to her wrist in Pressley v Homewood Suites, 2015 Mo WCLR Lexis 73, affirming the denial of benefits in a 2-1 decision.

The employee only appealed the denial of a finding of accident.   Claimant's expert concluded that claimant aggravated her arthritis, chipped ulna cartilage and required ulna resection including removal of a large osteophyte.   The treating surgeon concluded that the prevailing factor for the torn tendon was claimant's arthritis and spur which weakened the tendon, but that the accident may have played a role in partially tearing it. 

The Commission reframed the issue as not merely  a battle of experts but whether claimant carried her burden of proof under 287.020.3(2). The treating physician indicated this event involved a low level of exertion that could happen any where at any time. Although Dr. Volarich indicated the accident was the prevailing factor,  his testimony did not specifically rebut Dr. Feinstein's conclusions of equal exposure.   "Dr. Volarich did not specifically address the question of unequal exposure." Claimant failed to show she did not have equal exposure at work and away from work.

The employer had paid about 1/3 of the medical bills.  The ALJ did not order payment of the bills but "strongly recommended" the employer pay the balance because a representative of the employer authorized care even though the accident was not deemed as compensable.   The Commission did not address this issue as there was no order issued.

Claimant indicated 4 months after her accident she had an injury at home scratching her leg and felt pain across her wrist. The surgeon concluded this last event likely ruptured the wrist tendon.  The ALJ noted claimant's expert provided no explanation about claimant's continued ability to work without significant medical treatment for months if the rupture occurred in the original accident. 

ALJ  Wenman
Atty:  Hoffman, Kerr, Daugherty
Experts:  Volarich

Tuesday, June 30, 2015

"Failed" return to work did not defeat PTD claim against Fund

The Second Injury Fund argued that claimant was employable in the open labor market because she had been able to return to work without accommodation  for a nurse for 8 weeks as a substitute during a maternity leave.  The Commission modified a finding of PPD to PTD and found that claimant's return to work was "too limited and sporadic" to demonstrate a capacity to work.
Myers v Truman Center, 2015 Mo WCLR Lexis 71 (June 25, 2015).

Claimant at the time of the hearing was 67 years old and alleged pre-existing psychiatric disability in her claim against the Fund.  Before she retired from  nursing, she worked 12 hour shifts in an intensive care unit but stated  that she often had trouble focusing at work and was in a "haze" a lot of the time as a result of sleep loss from anxiety and depression.  Before she fell she was told she needed knee surgery and ultimately underwent bilateral knee replacements.  The employer settled the case before the hearing.

The Commission noted that ALJ had used the incorrect definition of accident, as the case was more than 10 years old and had been subject to pre-reform rules.

ALJ  Cain
Atty:  Stracke

Medical fee dispute not subject to 60 day service

A doctor selected by the comp carrier disputed partial payment of a medical bill, resulting in an award of the entire bill when the employer offered no evidence disputing the reasonableness of the charges.  Phillips v Allied Systems, 2015 Mo WCLR Lexis 72 (June 25, 2015).

AIG re-priced the bill and reduced the charges by $1,090.  The ALJ found no factual or legal basis to dispute the charges.   The Commission affirmed the award.  The employer objected to the admission of the affidavit by the ALJ pursuant to 287.210 when it was served less than 60 days before the hearing.   The Commission  made a distinction between a doctor-written report that was an expert medical opinion subject to the 60 day rule  and an expert "professional" opinion addressing the narrower issue whether the doctor regarded his own fees were reasonable.  It concluded the admission of fee-dispute reports were governed by 287.140 and not 287.210.7. The only objection was whether the report violated the "rules of evidence in civil proceedings."


ALJ Rebman
Atty Schroer, Moen

Monday, June 8, 2015

Psych claim from being too hot rejected

Claimant asserted she was exposed to heat more than 100 degrees at work due to a malfunctioning air conditioner.  As a result she claims she developed permanent disability from heat exhaustion and sustained permanent psychiatric injury.  Fowler of State of MO Dept of Corrections, 2015 MO WCLR Lexis 55 (May 28, 2015).

There is no dispute claimant had to work in hot conditions and likely sustained heat exhaustion.  She reported she was weak, dizzy and disoriented with panic attacks.  She had treated for anxiety and depression for several years leading up the accident. A psychiatrist asserts the experience worsened her prior psychiatric conditions.   Her expert contends she had partial disability and was permanently restricted from working anywhere more than 85 degrees.   The Commission affirmed a denial of benefits based on expert testimony which found no persuasive evidence of any injury.

ALJ Ruth
Atty:  Van Camp, Kiefer, Herman
Experts: Cohen,  Daniel  Jarvis

Traveling nurse awarded benefits

A traveling nurse on a home visit fell on the front icy trailer steps and sustained multiple transverse process fractures with radiculopathy.  The employer asserting that claimant had not yet started her job nor had she clocked in at the time the accident occurred. West v Phoenix Home Care, 2015 MO WCLR Lexis 54 (May 29, 2015). 

The Commission affirmed an award of temporary benefits and found a unique hazard of climbing stairs of a patient's trailer at an evening during the winter when ice and snow were present.     The commission found that claimant was compensated for travel and if her duties had already began she had no further obligation to show that she clocked in to work.  The Commission suggests reformers may have eliminated separate tests whether an accident arose out of and in the course of employment and that the only evidentiary requirement to satisfy both prongs is whether an employee has an unequal exposure to work related risks or hazards.

ALJ  Landolt
Atty:  Eveland, Murphy
Experts:  Berkin

Friday, May 29, 2015

Uninsured employer with secondary liability subject to civil suit

A company obtained summary judgment to prevent a civil suit resulting from a fall based on an exclusive remedy defense.  The court of appeals reversed the summary judgment as the employer failed to prove that it carried comp insurance.  Harman v Manheim Remarketing Inc. SD 33414 (Mo. App. 5-26-2015). 

Harmon sued Manheim and one of its employees when he fell on their premises in 2010.  Harman was employed as a security guard for Securitas Security.  He settled a comp case against Securitas and then sued Manheim.  He alleged that Manheim lacked the exclusive remedy defense under 287.120 to support a summary judgment  because it did not acquire insurance under 287.280 and was deemed an employer by controlling work under contract as part of its usual business.

Manheim argued that it had no liability as the contractor, Securitas, had coverage and provided benefits.  The court concludes the legislature under strict construction did not intend relief to an employer of its obligation to have insurance even if its liability was secondary and not primary and if it did not insure then it must "suffer" accordingly. 

Friday, May 22, 2015

Tired worker awarded compensation for broken ankle

The Commission in a 2-1 opinion affirmed an award of disability of more than $82,000 for a claimant who fell because of  a sleep disorder  caused by working long shifts.  Riggins v My Camp, 2015 MO WCLR Lexis 47 (May 14, 2015)

An injured worker must show a risk source in order to recover benefits.   The employer argued based on Porter v RPCS, 402 S.W.3d 161 (Mo. App. 2013) that a claimant has an obligation to identify a risk source, and since she could not identify how or why she fell she is not entitled to compensation.
The Commission in Riggins concluded an expert may establish a risk source even if the claimant has no clue why the accident occurred.   The risk source must be something more than what someone encounters in normal non-employment life, such as falling off of rail cars.  Gleason v Treasurer of State of Mo, 455 S.W.3d 494 (MO. App. 2015).

The idea of a non-physical risk source isn't exactly new ground.  Missouri recognized working too many hours as a hazard since Snowbarger v Tri County, 793 S.W.2d 67 (Mo. 1990). In Snowbarger the claimant had worked extensive hours  (86 out of 100.5), performed strenuous labor, and on his way home fell asleep and collided with another vehicle.   Riggins  had worked 17.5 hours from March 14-15, took a 6.5 hour break, and was injured about 12 hours into her next 17.5 hour shift.

Claimant in March 2011 apparently drifted  asleep in the middle of the night   while watching television  after giving a resident some medication, and without explanation found herself on the floor with a broken ankle.    Claimant reports she had put a resident to bed at 8 p.m, she gave medication at midnight, and in the next 3 hours she performed some house cleaning and watched television.  In the middle of the night she collapsed and was diagnosed with multiple  fractures of her ankle as a result of falling. 

 A sleep medicine specialist concluded that a shift work disorder and circadian misalignment syndrome contributed to her syncope and loss of consciousness.   He concluded she fell asleep and that's why she fell.  An employer's expert concluded the claimant could have been deprived of sleep but  disagreed on the precise diagnosis. 

The ALJ concluded claimant worked "extremely long over night shifts" with inadequate rest intervals  which created a work risk that was the most likely explanation for claimant's fall. She had a 6.5 hour interval after her previous shift.   The employer offered no persuasive evidence to support its assertion the fall arose from an idiopathic condition such as hypotension.

This is a very a clever premise that if work makes you tired, then being clumsy gets you compensation.  Factually there is no physical hazard at all, much like Miller v MO Highway Transportation Com'n, 287, S.W.3d 671 (Mo. 2009).    There is no identifiable physical risk at all.  This is a level surface fall, unlike Gleason.  . There is not even immobility causing a leg to "fall asleep" and an increased risk to stumble as in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999). There is no associated hazard operating a car.  The cause of becoming tired does not arise from over stimulation such as responding to emergencies.  It anything, liability is predicated on boredom from under-stimulation and how long the claimant has to work and not any unique hazard in the work activity itself. 



ALJ Tilley
Atty:  Elfrink, Voigt
Experts:  Schwartz, Poetz, Eisenstein, Krause
Treater:  Dr. Trueblood
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