Monday, April 20, 2015

Court rejects 'obesity defense' in collapsing chair case

"There is no provision of the Law that requires employee to prove he was "working" at the time of his accident," according to the Commission in a recent case.  Wright v. Roto-Rooter, 2015 MO WCLR Lexis 29 (April 7, 2015). 

The Commission rejected a defense from the Second Injury Fund that claimant was "not working"  in the employer's lunch room when his  chair collapsed.  The Commission finds an accident compensable even though the worker is not "actively working" under the extended premises doctrine when the injury producing accident occurs on premises owned and controlled by the employer and the worker is in a place where he is allowed by custom or approval. The Commission noted proof a defective chair owned by the employer identified  the risk source of a claimant's injury, that is, identification of the activity that caused the injury,  and there was no  evidence of similar   risk source to normal non-employment life. The Commission declines to "carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographic and temporal boundaries. We deem such an approach impractical, inconsistent with the purposes of the Workers' Compensation Law."  The Commission finds the collapsing chair a "hazard present in the workplace."  The ALJ  concluded claimant was likely working because most of his lunches were working lunches. 

The worker sat in a chair in the employer's lunch room, the chair broke, and he hurt his back.  The employer settled the case, and the commission affirmed an award of permanent and total disability benefits against the second injury fund.  There was no dispute about medical causation.

The worker had just returned to work only about 2 months after he was released from a prior surgery at L4-5 for chronic back pain and left sciatica. While sitting in the lunch room the back leg of his chair bowed out and he collapsed.  He ultimately had surgery including fusion at the same disc level for  new right leg symptoms.  Claimant's vocational expert indicated back pain that caused a need to rest "at will" rendered him unemployable.  His medical expert found substantial pre-existing conditions.  The ALJ found claimant's prior conditions and re-injury to his back rendered him unemployable.  The employer settled the case. The record does not identify any medical expert opinion offered by the Fund to defend the claim.

 The Fund argued that claimant's weight could cause a chair to collapse  so he failed to show occupational hazard because he was equally exposed to collapsing chairs away from work.   The ALJ rejected this argument:   "They suggest that because of his weight, and in the absence of proof that the chair was defective, his Claim must fail. Again, I disagree. I find no evidence in the record to suggest that Claimant's weight resulted in other chairs outside of work, or any other chairs for that matter, to collapse on him. Certainly, there were other chairs that Employer provided to Claimant, at his desk for instance, that were not shown to collapse when he sat in them."  The ALJ also noted the Fund relied upon meaningless impeachment if the chair fell before or after his buttocks hit the seat. 

The Fund offers no evidence  regarding any risk to the same chair in a non-occupational capacity.    Section 287.020.3(2)(b)  allows no statutory defense without proof of risk from the same source. This  leads to an absurd result that the legislature intended to create a defense which was impossible to assert.  A better understanding of what the courts are doing by this interpretation is that  the employer  owes the claim because  the employer  controlled its own exposure to risk  when it bought and provided the chair to employees.   

The non-occupational v occupational comparisons in 287.020.3(2)(b) defenses  have been a source of a lot of litigation and denial of benefits.   Young v Boone Electric Cooperative,  2015 Mo App. Lexis 407 (April 14, 2015), involved litigation over tripping over a clod of dirt.   Eberhard v G4S/Walkenhut,  2015 Mo WCLR Lexis 1 explored of the hazards of whiplash from falling  toilets dispensers.


Wednesday, April 15, 2015

Court affirms worker had "unusual" strain from routine activities

A worker in his 50s tore three tendons in his right shoulder in 2009 after he lifted himself about two feet into his truck.  In a 9-2 decision, the majority of the Western District as a matter of first impression found under the new Act claimant established he had an “accident” even though he performed the normal duties of ascending his truck in a usual fashion.  Young v Boone Electric Cooperative, WD 76567, WD 76568 (W.D. Mo. App. 2015), 2015 Mo App. Lexis 407 (April 14, 2015).  The court affirmed benefits previously awarded by both the ALJ and the Commission.

This important case involved statutory interpretation to sort out what the legislature meant when it redefined “accident”.  Section 287.020.2 defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.”

The legislature did not define key terms in the definition of “accident” like “unusual” and told the courts to disregard everything they said in the past by abrogating prior judicial interpretations. Larson's treatise explains that "unusual" can have several different meanings depending on what is being compared.   The court noted it disagreed with the policy behind the reform and clearly decided to do something about it even though the statutory argument was never properly preserved in the brief.  The majority decouples the definition and finds proof of strain does not require proof of an "event."
Missouri case law before 1983 required proof of an unusual event.   The dissent concluded that reform brought the state back to a pre-1983 standard to prove unusual events before Wolfgeher  v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983).  

The majority found what matters is the fact that an injury occurred and not what preceded it.
 Claimant described an activity (lifting) that was identifiable by a time and place and causally related to his medical condition.  It did not reach the issue whether the facts also established an unusual traumatic event.   It rejected the defense that claimant must show an abnormal activity or abnormal performance of a normal activity.    The court relied upon Pattengill v Gen Motors Corp., 845 S.W.2d 630 (Mo. App. 1992) (a pre-reform case) which it finds to have analogous facts. 

 Claimant described an immediate onset of symptoms that his shoulder popped and he had difficulty moving his arm.   The concurring opinion found the majority used circular reasoning and that the legislature’s use of “unusual” meant something more than a worker experienced an unusual manifestation of symptoms after a usual activity.  

The case clearly ease the burden to prove accident.  Medical causation of injury by accident was not disputed in this case.   

The court also affirmed an award of compensation and found claimant had a compensable accident when he stepped on a frozen clod of dirt and fell.  Claimant in 2008 sprained his knee when his knee popped, and then it popped again when his co-workers helped him up. 

The employer asserted claimant did not have an accident to his knee because he did not prove the statutory requirement under 287.020.3(2)(b) that the injury “does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.”

The employer asserts that claimant lives on a farm that farms have dirt, and he could have the same risk of falling over dirt away from the work.  The Court found that 287.020.3(2) (b) under strict construction does not allow a defense based of the same general hazard but only of the same hazard at the same location.  Alternatively, the Commission found no evidence of non-occupational “equal” exposure.   Claimant is required only to show that he was exposed to an unsafe condition as a function of his employment.  It is then the employer’s burden as an affirmative defense to show that he had equal exposure to the same place and the same hazard when he was not working such as being exposed to the same ice on the same lot or the same crack on the same street.  Duever v All Outdoor, 371 S.W.3d 863 (Mo. App. 2012).    This becomes an impossible defense when claimant when the claimant in his capacity as a non-worker would not have access to space within the employer’s exclusive control.   It becomes the employer’s defense to show equal exposure “to disprove the prima facie case already made by Young.” 

The court makes a semantic distinction of injuries that occur because someone is working and not merely while they are working.  

Atty:  Allen, Friel
 

Wednesday, April 8, 2015

Court remands subrogation finding with consortium damages

The Commission went too far to address a subrogation dispute in a third party settlement involving a wife’s loss of consortium claim when the wife was not a party to the comp case.    Graham V Latco Contractors, 2015 MO App. Lexis 379 (April 7, 2015) found the Commission violated due process of the claimant’s spouse.

The third party settlement contained an no allocation for the claimant and his spouse.  The employer was entitled to a portion of the claimant's net recovery but the comp subrogation statute did not allow recovery for the wife's consortium recovery.   The Commission concluded that the spouse was presumed to have no recovery and made the entire net recovery subject to subrogation, following Ryder Integrated Logistics v Royse, 125 F. Supp. 2d 375 (E.D. MO 2000).
The court found Ryder unpersuasive and that the Commission violated due process because  the claimant’s spouse had never been added as a party.
The case is remanded to the Commission to amend the award. Similarly, MIGA was not a proper party under 287.150.6 for the ALJ to find a subrogation interest or for the Commission to take it away.  The court noted the civil rule for joinder  provided no remedy to add the spouse as a party.
See also  McGuire v Christian County, 2014 MO App. Lexis 502 (May 5, 2014).(finding no right of joinder).

 Claimant at age 41 was awarded total disablity when  he became hypersensitive to smells from building and maintaining chicken houses.  He last worked 15 years ago.  He settled a personal injury case against Tyson for $730,000.  His worker’s compensation carrier, Legion, became insolvent in 2002 about two years after he stopped working.  

Atty: Rau, Petraborg, Wilfong

Commission finds no statutory requirement for disability rating

The Commission awarded partial benefits of 18 weeks against the Fund, reversing a denial by the ALJ that claimant failed to show evidence of a permanent disability because his expert did not provide a disability rating on the primary injury.  Marcainte v Charles Jarrell Contracting Co., 2015 MO WCLR Lexis 28.

Section 287.190.6(2) provides: 

"Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. "

The Commission found "it is not necessary that physicians certify permanent disability in mathematical terms" and that a worker may establish disability with or without a rating provided there is other evidence to show the nature and extent of permanent symptoms, restrictions and/or limitations."

The case involves a career sheet metal worker who had pursued a 4th comp claim involving a back injury.  He  had a history of multiple back injuries, back surgeries, and prior settlement which totaled 60% disability.  Claimant in 2009 bent over and felt a pain in his back and underwent several more back surgeries including fusion, drainage for an abscess, and revision for a failed fusion.  He returned to work for two years but testified to unresolved symptoms in his back and leg, a neurogenic bladder, and more reliance on narcotics. 

The claimant alleged he was now totally disabled when the employer laid him off work two years after his injury  he was unable to find alternate employment with his permanent restrictions.     Claimant obtained a vocational and forensic opinion that he was unemployable due to a combination of the primary injury and pre-existing. The Fund  provided no expert opinion at all and attempted to assert that claimant 'was working' without restrictions and relied upon the absence of a rating as its defense.  The employer settled the case for 35% after claimant had undergone three surgical procedures and claimant at 58 had been laid off and  claimed he couldn't work anymore. 

The ALJ denied SIF benefits because claimant did not offer a medical opinion stating the percentage or amount of disability that resulted from the last injury alone.  The ALJ found there was no case law that allowed an ALJ to determine disability absent a medical opinion.  The ALJ found claimant produced evidence that he did sustain a serious injury that his complaints were credible.   The Commission  concludes since the statute does not mandate a rating that a rating is not required under strict construction.    The Commission found a synergistic effect of 10% and makes findings that claimant now has new left leg symptoms and new surgery at different levels compared to the prior cases.  Claimant had returned for nearly 2 years without evidence of significant accommodation.

The case in many respects is a textbook PTD case involving multiple spinal surgeries at several levels which allowed the worker to return to work with continued symptoms and limitations.  The Commission found this created SIF liability based on the potential to combine despite claimant's assertion that he was working.   The Commission ultimately  found the claimant had received more in settlements than his actual disability: he had only 30% prior disability (with 60% in settlements) and 15% new disability (less than 1/2 the 35% settlement from the employer before the hearing).

The Commission's finding of legislative intent  does not address what appears to be a conflict caused by 287.210 which defines a medical report to require a rating and that a medical report without a rating is incomplete by definition and objectionable.   It is unclear the legislature would  intend the parties not to produce ratings when 287.210 requires parties to produce ratings from treating doctors.

What this case means is that workers in some cases may submit a case without the expense of a rating, provided the worker establishes the other criteria of 287.020.  This reduces the cost to the worker  and makes a case ready for hearing quicker.  This should be a warning to employers there is no safe harbor until the claimant secures a rating to prosecute a case.   

There may be a lot to be said to abolish ratings in Missouri because of their limited efficacy when there is no statutory standard for uniform methodology or adoption of any generally-accepted rules, such as AMA.  In that respect, the decision still leaves a lot of discretion in the Commission to consider ratings they may ultimately disregard or tell parties simply not to bother. 

ALJ  Carlisle
Atty:  Lenz
Experts:  Musich, England   
Treaters:  Mirkin, Rutz

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


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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

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