Thursday, March 26, 2015

ALJ Finds part-time is "real" work

The Commission ordered the Second Injury Fund to pay total disability benefits to a 65 year old woman who worked stocking shelves and running a cash register and stopped working after she hurt her back .  Rellergert v MFA, 2015 MO WCLR Lexis 23 (March 18, 2015). 

The case involved two primary injuries involving a low back strain and a shoulder surgery in which she had been released by her surgeon without restrictions.    Her expert concluded she required a plethora of medical restrictions, unlike her shoulder surgeon.  Her vocational expert concluded she was unemployable in the open labor market because she could not work full-time.   Her medical history included a prior total knee. 

Claimant's vocational expert  testified  that claimant was unemployable if she could not maintain a full-time schedule of at least 34 hours.  The ALJ disavowed this conclusion.  'I do not adopt Mr. Weimholt's apparent belief that an employee who can only work part-time is not employable in the open labor market."  The Commission, similarly, has rejected the vocational expert's opinion.  Brashers v Treasurer of the State of Mo., 442 S.W.3d 152 (Mo. App. 2014).

The Fund appears to offer no expert opinion to support its denial of liability. 

ALJ  Ruth
Atty:  Veit, Ahrens
Experts:  Volarich,  Weimholt


Tuesday, March 24, 2015

2 million verdict for demotion based on safety concerns

A district manager with 11 years experience was awarded $2,000,0000 in compensatory and punitive damages based on violations of the Missouri Human Rights Act when the jury from Platte County found the employer considered claimant's MS condition as a factor in his demotion despite glowing performance evaluations. Ellison v O'Reilly Automobile Stores, Inc., WD 77728 (Mo. App. March 24, 2015).

 The court found the employer's conduct outrageous when claimant's performance evaluations were favorable but management "considered his disability" and demoted him. The employer argued that different jurors agreed on the first issue of liability and the second issue regarding the amount of damages and only 7 agreed on both issues.  The court found a majority of 9 supported both verdicts.

The employer prepared documentation after the worker's demotion showing that he was a potential "safety issue" and had fallen and customers had difficulty understanding him at times. The opinion identifies no similar documentation of problems  prior to his demotion.    He had worked his job without accommodation  Ellison had myotonic dystrophy when he was hired, but he began to use leg braces the same year that his employment ended. 

Monday, March 23, 2015

Award denied due to conclusory expert opinon

The Commission found an expert failed to fully explain why a condition was work-related supported a denial of benefits.  Tauvar v City of Gladstone, 2015 Mo WCLR Lexis 21 (March 12, 2015).  This is one of several reasons in the case  to support a failure to prove an occupational disease. 

The case involved a claim for a back from an occupational disease.  She had pre-existing history of trauma and obtained medical expert opinion from Dr. Prostic and Dr. Zimmerman who  concluded her various conditions flowed from work resulting in an alleged 64% BAW disability.  

The Commission  affirmed the denial but clarified the opinion that claimant failed to prove an "occupational disease" instead of failing to prove an  "injury by repetitive trauma."   The Commission noted claimant has the burden to  show with a "probability"   "(1) whether  there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort.  The ALJ noted her claim was inconsistent with notes from her personal physician and an insurance claim.

The claimant left her job more than a decade ago as part of an employment discrimination settlement,  and she apparently had evolving ideas what parts of the body were injured from her job working a reception desk. 


The Commission denied benefits in Neese v Chrysler, Old Carco, 2014 MO WCLR Lexis 22 (March 11, 2015) involving four claims of occupational disease leading up to end of employment in 2005 and her neck surgery in 2007, affirming a denial. 

The Commission found that claimant failed to prove a compensable injury under 287.110 and did not show an employment contract in Missouri, and her work was not principally localized in Missouri within 13 weeks of the injury or diagnosis.  Claimant had worked in Alabama but had worked in Missouri only about 3 weeks.  The Commission in addition denies benefits based on lack of causation noting the experts relied upon inaccurate histories. "Both doctors rendered purely conclusory opinions in their reports, and failed to persuasively explain any causative interaction between employee's job duties in Missouri and the purported occupational disease."

ALJ  Denigan
Experts:  Dr. Poetz, Dr. Berkin, Dr. Cantrell

Commission enhances disability for eye injury

Claimant injured his left eye in 2011 when he used a nail gun and after two surgeries he had a 0% visual acuity.  The major issue in the case was whether he was entitled to an additional 14 week enhancement for a 100% loss of use.  Romero v Nelson Flooring, 2015 MO WCLR Lexis 20 (March 12, 2015). 

Section 287.190.2(29) provides a 10% enhancement of a disability award when there is a 100% loss of use of a scheduled injury.  The Commission indicated the medical evidence did not expressly establish a 100% loss of use.  The stipulated findings at hearing did not expressly address the 10% enhancement and the Commission found the stipulations somewhat ambiguous.  The only evidence was there was a 100% loss of visual acuity and the employer seemed to agree to a 100% loss at hearing, although neither party made a finding regarding entitlement to 110% of PPD.  The Commission ultimately found claimant entitled to 110% benefits and noted the employer attorney showed an "admirable show of candor" that he really meant a 100% loss at the time of the hearing, which appears to have been the case all along. 

In addition, the Commission awarded  future medical for doctor's office visits, replacement contact lenses, reimbursement for the cost of eye drops, and lens cleaner as needed in the future by Claimant; TTD based on 3 days of earnings (based on testimony that claimant worked 2-3 days), and awarded costs against the employer for the cost of a service of a subpoena when the company owner  based on  "his refusal to voluntarily and cooperatively attend" a deposition. 

 Parties who intend a 110% loss may want  to stipulate to that effect at hearing to avoid a need for appeal to clarify any ambiguity in the record. Similarly, the opinion suggests a contested issue for a statutory  10% enhancement may require express findings by an expert addressing "loss of use."

ALJ Landolt
Atty:  Ituarte, Paasch
Experts:  Pernoud

Friday, March 20, 2015

Employer cannot compel workers to play nice with others

A lot of worker's compensation is not just about injuries but how labor and workers get along with each other. 

This brings to mind an NLRB decision last year  in which a Michigan hospital  had a Values and Standards of Behavior Policy.  Many large companies have these types of code of conduct.  Such policies are often drafted by large silk law firms who make big money to write manifestos on good behavior.   Picture Moses coming down from Mt. Sinai with the Big Ten Standards of Behavior and then telling everyone to wait awhile because senior associates from his law firm and a pack of mules are still hauling down all of the ten section's sub-parts. 

The hospital had experienced problems with low morale and back-stabbing and drafted its rules to address a wide-variety of conduct including customer service, respect, teamwork, attitude, continuous improvement and fun.  It says a lot about corporate culture when lawyers need to draft rules on 'fun.'

So there is this document, which we know from the opinion is at least 21 paragraphs, and it tells its employees among many other things that 'one shall not engage in or listen to negativity or gossip, not make negative comments about fellow team members, and represent [the Respondent] in the community in a positive and professional manner in every opportunity.'

The judge, and the NLRB agreed, the prohibitions were not ambiguous and were unlawful against section 8(a)(1) because they "could" be reasonably construed to prohibit protected Section 7 activity such as discussing terms and conditions of employment or discuss labor practices.   Section 7 provides employees the right to engage in concerned activities for their mutual aid or protection. 
Hills and Dales General Hospital  (07-CA-053556; 360 NLRB No. 70)  Cass City, MI, April 1, 2014. Employers face unique challenges when injured workers who return to the work force  may encounter  adverse reactions from co-workers and supervisors.  Codes of behavior are important considerations to discourage discrimination.  Most larger employers or interstate businesses subject to NLRA regulation should carefully consider the risks of over-regulating conduct to direct its staff to straighten up and fly right.     

Tuesday, March 17, 2015

Comp injury no excuse for murder

While facing a death sentence and nothing else works, a convict turned to worker's comp.

When claimant was in his early 30s he worked in a sawmill.  A piece of wood broke off a log and lodged into his head resulting in brain surgery.  After the injury, claimant developed changes in his personality, he abused alcohol, and he became anti-social.  He  diagnosed with  "Dementia Due to General Medical Condition, Major depression,  and Psychotic Disorder Due to General Medical Condition," i.e., traumatic brain injury.

Many years later he was convicted of shooting a deputy point blank in his head when the deputy  investigated a complaint from his girlfriend.  He argued at trial that he didn't do it, and even if he did do it, he didn't mean it and lacked intent.   He argued at the sentencing phase, the death penalty was not appropriate because of his prior TBI.     The "sad" belief that divine intervention  will save him and free him to become a gospel singer did not make him incompetent. 

A dissent argued that he was entitled to a hearing to assess his competency given past IQ scores of 71 and that is was  unconstitutional  to execute him, even if he may have been more competent at the time of the hearing.  The judge criticized the state for rushing the execution dates of capital convicts.  The deputy was killed 19 years earlier.   State ex rel Clayton v Griffith, 2015 Mo Lexis 24 (March 14, 2015). 

Clayton, 74,  was Missouri's oldest inmate on death row.  He was executed by lethal injection.

St. Louis University has researched for many years the adverse impact of some workers with back injuries and long-term consequences such as financial problems resulting in more post-accident evictions and child support collections.  The  lead researchers concluded  that disparate treatment is  associated with  more post-accident anti-social behavior such a stalking and adult abuse.

The death row appeal dealt with a  narrow issue of whether someone who had previous marginal testing of IQ with a history of 20% of his brain removed was entitled to a hearing on competency before he was executed.   The state Supreme Court split 4-3 to deny a hearing.   The governor denied clemency. 

Friday, March 13, 2015

No comp benefits for a prosecutor's ordinary stress

A state prosecutor who worked nine years at Jackson County claims work caused him to become depressed, impair his ability to concentrate and render him unemployable.    Kersten v Jackson County, 2015 Mo WCLR Lexis 19 (March 5, 2015). 

Jackson County  reduced his duties as an accommodation.   Ultimately the County fired him. The decision identifies numerous problems with family illness, alcohol use and difficulties caring for a child.

Claimant testified he rarely leaves his bedroom and avoids telephones.    His expert identified major depressive disorder and concluded that felt he could not work.   A different expert felt claimant's work experiences were not the prevailing factor in his condition.

§ 287.120.8 provides "Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events."

Claimant failed to demonstrate extraordinary stress or that his workload was materially different than other prosecutors.  The ALJ found since  rule13 clerks were able to handle his assignments that none of the cases could be properly described as extraordinary.  The ALJ found neither expert highly persuasive and found their conclusions "predictable" based on their "noted biases." 

The ALJ indicated that comparison of levels of stress to co-workers remains relevant to assess to an overall objective analysis.  He appears to question, however, whether statutory reform changes this analysis because reform requires strict construction and 287.020 does not expressly require it.  The Commission did not address this issue in its own opinion. 

The Commission noted evidence should be viewed impartially, and the ALJ weighed evidence appropriately, but disavowed comments by the ALJ that testimony from witnesses who had been fired should be viewed through a "jaundiced" eye. 

ALJ  Siedlik
Atty:  Kimbrell, Chappell
Experts:  Hill, Hughes