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.  

Monday, August 3, 2015

Failed return to work after 18 months supports PTD

In Green v ZLB Plasma Services, 2015 MO WCLR Lexis 81 (July 30, 2015), the Commission modified a PPD award against the Fund to a PTD award and found a worker who returned to the same employer in an accommodated job was not really working in the open labor market.

Claimant, 57, alleges she twisted after she stepped in a pot hole at a gas station while running an errand.  She alleged injuries to both legs and both arms.  The employer accommodated her after her accident to essentially work a sedentary position.  She was awarded social security as a result of symptoms which included a need to lie down, physical inactivity and depression.

The SIF disputed claimant had a compensable accident.  The Commission rejected that defense.  Medical records documented chronic back pain with radiating pain from stenosis pre-dating the accident.   The Commission found SIF liability on the basis of prior CTS and personality disorder despite the limited medical records supported the allegations.   Claimant alleged pre-existing psychiatric disability on the basis of using prior anti-depressants although the evidence suggested "very little "prior psychiatric treatment. Evidence supporting prior CTS was also highly attenuated.
A vocational expert concluded that claimant appeared unemployable due to her use of a cane, her slow gait, her presentation as someone slow intellectually. 

The commission concluded that claimant's ability to continue working for 1 1/2 years did not preclude a finding that she was unemployable in the open labor market.  The commission noted this evidence was not challenged by any expert from the SIF and the ALJ did not express indicate that he found the testimony not worthy of belief.  The Commission noted further that the SIF erroneously relied upon a defense of post-accident worsening because such a defense required medical evidence and they did not offer any to support the argument. 

ALJ  Rebman
Atty Smith
Experts:  Koprivica, Titterington

Wednesday, July 29, 2015

Court affirms award for ankle surgery

The Commission slightly modifies the award of past medical by the cost of two office visits for knee injection for chronic knee pain which were unrelated to claimant's ankle injury, as the claimant concedes he does not seek benefits for the knee, although the Commission notes there may be "some" relationship as claimant limped after his ankle surgery.  Ambrozetes v Smurfit Stone Container Enterprises, 2015 MO WCLR Lexis 75 (July 14, 2015)

The commission affirms the award for an ankle injury including disability and medical benefits.  Claimant in 2009 had some stock fall in him when he was driving a smart car.  Claimant eventually sought care with a podiatrist who recommended surgery for a tendon tear. The employer refused to provide surgery.  The employer relied upon the opinion of Dr. Krause who questioned the need for surgery flowed from the work accident because of the absence of instability noted on exam.  The commission noted that Dr. Krause later conceded in testimony that surgery would still be reasonable due to continued pain complaints and the Commission this testimony resolved any ambiguity.

ALJ Wenman
Atty:  Mobab, Green
Experts:  Schmidt, Woiteshek, Krause

No SIF benefits when prior is not at MMI

In Schroeder v Applied Turf Products, 2015 MO WCLR Lexis 79, the Division affirmed a denial of SIF benefits for a claim involving a fall from a ladder. 

Claimant failed to prove his pre-existing condition at the time of the primary injury was permanent and stable as he was still in medical treatment and not at MMI for the pre-existing condition at the time the primary injury occurred.   His primary injury involving falling off a ladder resulting in aggravating an osteophytic neck and causing "post-traumatic" headaches. 

Claimant had obtained vocational evidence that he was totally disabled including psychiatric opinion of permanent disability from "mood" and "pain" disorders.

ALJ Kohner
Experts  Volarich, Gonzalez, Stillings

Fund denial affirmed for lack of synergy

The commission affirmed a denial of SIF benefits based on lack of synergy.  Reynolds v. Fulton State Hospital, 2015 Mo WCLR Lexis 76 (July 15, 2015).

Claimant settled a case against the employer for 3% and sought SIF benefits for prior medical conditions involving a right knee, a groin injury when the claimant was "grabbed" by a patient and a significant prior 38%t to the same ankle from a ligament reconstruction surgery as a result of a work injury while playing basketball with patients.   The commission found no  basis to award SIF benefits when the record contained no lay or expert opinion about the enhanced disability.  It noted a worker was generally competent to testify about enhanced disability when injuries were bilateral but "here the employee has failed to produce any evidence" except how each prior condition caused separate disability.

ALJ Ruth
Atty:  Keifer,
Experts:  Volarich
Treater: Krause