Friday, December 28, 2018

Future medical affirmed for aggravation of prior depression

Cynthia Null v Albany Medical Center dba Northwest Medical Center Association
2018 MO WCLR LEXIS ----
Inj.  12-100528  12/20/2018
https://labor.mo.gov/sites/labor/files/decisions_wc/NullCynthia12-10052812-20-18.pdf


The Commission affirms an award of past and future medical related to a slip and fall in a parking lot that produced knee and ankle injuries and aggravated prior psychiatric conditions and found future treatment was reasonably likely.

The future medical award included treatment for chronic pain management, treatment related to a spinal cord stimulator, psychological counseling and medication for depression and psychological injury.

The past medical in dispute represented about $41,000.

The only issue in dispute was past and future medical. 

The parties prior to hearing stipulated to disputed disability of $120,000 related to injuries to the ankle, foot and knee that required ORIF to the ankle and arthroscopy to the knee.  The employer had paid more than $281,000 in medical benefits including treatment for pain management and psychiatric care. The fund had stipulated to $60,000 for a disputed PTD. The pro rata rate was substantially below the comp rate.

The Commission found  the need for future medical treatment from an admitted accident was established with reasonable probability and  as a matter of law rejected the employer's argument that claimant must show the accident was a prevailing factor in the need for medical treatment related to disputed psychiatric care.  The Commission found the award of past medical care of about $41,000 was based on credible evidence even though the medical opinion was based in part on claimant's incomplete medical history. 

Dr. Schmidt testified claimant's accident aggravated a prior major depressive disorder and caused a new pain disorder.  He notes claimant has "unusual physical reactions" and acted "bizarrely." He rated her with a 15% new impairment and attributed an additional  10% to pre-existing.  the employer's original expert felt claimant had post traumatic stress disorder among other conditions.  The ALJ rejected the expert opinion that claimant had a permanent pain disorder or required medication indefinitely. 

The ALJ detailed findings that claimant's prior medical history was 'less than entirely consistent'.  The Commission found no lack of intent to deceive but concluded inconsistencies likely flowed from a confused mental state and impact of medication prescribed for her work injury.  Claimant describes multiple 'black out' spells attributed to medication from multiple sources.  Claimant was regarded as credible about her impairment following the accident.

 A concurring opinion felt the alleged error argued by the employer was weakened because the employer had provided care for psychiatric treatment.

The parties reached an agreement prior to hearing that employer  agreed to pay $10,000 toward the disputed medical bills irrespective to any decision by the judge and the payment would be credited toward any award above that amount (the total medical in dispute was about $41,000).  The ALJ found the employer failed to prove claimant's personal liability had been extinguished and ordered the entire amount.

The 69-page opinion describes prior issues with chronic pain and somatic disorder.  She describes post-accident "black-out" spells (related in medication) and "unusual" presentation of pain. The diagnosis included major depressive disorder with pain syndrome with elements of complex regional pain disorder. 

Atty:    Dickson, Doyle, Shine
Expert:  Schmidt , Koprivica, Drieling, Rosenthal, Cordray
Treater:  Pronko, Hu, Jura


Wednesday, December 19, 2018

Court finds no contempt remedy for unpaid interest

Smith v Capital Region Medical Center
2018 MO App LEXIS ____
December 18, 2018
WD 81273

https://www.courts.mo.gov/file.jsp?id=134428

The court of appeals affirms a dismissal of a petition to hold the employer in contempt for not paying interest accrued on appeal of a worker's compensation award . 

" Our courts have long held that Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money....This case offers no reason to depart from that settled principle. "

The employer had paid after an award of more than $300,000 in benefits but did not pay accrued interest while the employer appealed the award.

The award was for interest "as required by law."  Interest is determined by 287.160.3.  The court found the award supported an obligation to award interest.

The employer argued the award was indeterminate and only the Commission had jurisdiction to determine the liablity.  The court rejected the arguments.

This was not an "open" claim that compelled exclusive jurisdiction of the Commission and the trial court had the inherent  authority to make the calculation of the exact amount due  because it is not an outstanding factual issue, even though the amount and interest was not expressly indicated in the award

"Section 287.160.3 is not recited here, but its terms plainly describe the amount of interest that will accrue on weekly benefit payments, and the date or event after which interest will accrue."
 
 The court found contempt was not available as a remedy to enforce a money judgment.
"Claimant's argument to use civil contempt to support a money judgment is not supported by well-settle law."

 The court notes exceptions such as child support cases were distinguishable.  The contempt remedy could apply when a party fails to perform other obligations beyond the payment of money such as not providing medical treatment ordered by the commission.

The court notes the employer did not raise the issue in its motion to dismiss that claimant had never reduced the award to a judgment pursuant to 287.500 so there was no judgment for the trial court to consider. The defendant in its motion failed to identify controlling case law to support its argument and improperly cited a per curium decision  (footnote 9). 


Court suggests different standard of review for denied comp cases

Farmer v Treasurer of the State of MO
2018  Mo App. Lexis ___
SD 35637
December 17, 2018

The Court of Appeals affirms a denial of second injury fund benefits in which the ALJ found claimant lacked credibility and his testimony was not trustworthy of belief.

The court raises on its own  an issue whether to apply the same criteria to evaluate workers' compensation cases in which the Commission award benefits and decisions which deny benefits and concludes the terms to evaluate awards (v non-awards) may warrant consideration of different standards.

"Perhaps because the word "award" appears so prominently (but not exclusively) in section 287.495 as describing final commission decisions, the division and commission typically title their ultimate decision an "award" whether benefits are granted or denied. This ubiquity is unfortunate because it heightens certain logical difficulties ....

In reviewing final decisions adverse to the claimant – the party with the burden of persuasion – the standard of review set forth in Hampton seems, frankly, nonsensical, and we believe it should be reconsidered for the reasons contained in our high court’s more recent decision in White v. Director of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (stating, "When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party" (internal citation omitted)). However, both the majority and dissenting opinions in Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928, 930 (Mo. banc 2016), purported to apply the Hampton standard in their differing analyses of the Commission’s affirmance of a decision denying compensation, so we will attempt to apply it here to the best of our ability. "


Claimant appealed and argued substantial evidence of medical expert opinion supported the award absent what he felt was improper admission of evidence of prior convictions for social security fraud.  The Court found no reversible error as the exhibits were cumulative as claimant had already admitted to the fraud convictions in his testimony.

"Claimant’s argument fails to appreciate that his credibility was crucial in resolving his claim. It is within the sole province of the Commission "to make such [credibility] findings[,] and we defer to such credibility determinations"

Claimant was a 58 year former chief of police for Hayti Heights who alleged  two claims against his employer for a neck injury from breaking up a fight and a stress claim for working long hours.   The opinion describes claimant's multiple claims in the past.  He pled guilty to making a false statement to obtain social security benefits, and concealing earned wages above the income threshold for disability.

Claimant's own expert, Dr. Driver,  reported it was difficult to obtain a consistent story but diagnosed him with a personality disorder. He found the MMPI profile was invalid. 

Claimant objected at trial to the admission of certified records from the federal and state courts concerning the prior convictions.  The ALJ found the admission of prior conviction was equivocal to support the admission of the documents. Claimant contends the admission of the additional records were irrelevant because he freely admitted the convictions.

The ALJ found claimant failed to prove accident of either a neck injury or psychological condition due to lack of credibility based on inconsistent history.

The erroneous admission of incompetent evidence did not warrant setting aside the award if it was otherwise supported.  The court noted the outcome was based on the finding that claimant was not trustworthy and not disregarding objective evidence which would have supported an award.

The employer had paid partial disability settlements in the two claims for neck injury and stress to settle the litigation. 

Experts:  Volarich, Driver, Shea

Friday, December 7, 2018

Commission admits missing pages of report under "interest of justice."



The commission allows the employee to introduce additional evidence on appeal of missing pages of a doctor's report under the "furthers the interest of justice" clause of 8 CSR 20-3.030(2)(B) and 287.550 but noted the report was not newly discovered evidence.  The SIF did not object to its admission.   Harold Williams, dec.   Dakota Coast, 2018 MO WCLR LEXIS --,  Inj.  00-170204  (Oct. 10, 2018)

The case proceeded solely against the second injury fund with settlement by the employer.

ALJ Dierkes notes claimant had never reached maximum medical improvement of the primary injury prior to his death no so disability had never accrued to trigger fund liability. 

The Commission modified the award and found sufficient evidence that claimant had reached maximum medical improvement despite expert opinion that claimant might require additional care.  The Commission denied fund liability based on lack of credibility or testimony about synergy.  Claimant minimized the extent of a prior back condition (20% settlement) or the ongoing treatment for pain management and exaggerated symptoms beyond what could be reasonably established on a physical basis. 

The ALJ noted claimant's expert had erroneous rated for loss of a kidney when claimant had not lost a kidney and had evidence of only a small tumor at the time of his accident. 


ALJ Dierkes
Atty:  Montgomery, Doner
Experts,  Parmet, Cohen  (SIF offered no experts)

Wednesday, December 5, 2018

Denial against SIF supported by insufficient expert opinion on synergy


The Commission affirms a denial of compensation benefits against the Second Injury Fund  in part based on a failure of proof of a synergistic effect between a left shoulder injury and prior loss of sight of the left eye. 





Pierson v The Boeing Company (SIF only)
2018 MO WCLR LEXIS 248
12-0982146,    DOLIR 11/28/2018.

Claimant had established synergistic effect between his neck and eye and finds insufficient medical testimony that there might be "more" synergy involving the shoulder and eye.  Claimant appeals.

The commission noted that 287.190.2 allow a presumption of continued disability only when the prior disability involved the same member or part of the body. 

The commission noted the doctrine of collateral estoppel did not apply in this case against the Fund from disputing the extent of prior disability because the amount of disability existing at the time of the last injury was not litigated in the earlier case.  The prior case adjudicated a rating of 35%, although the present case found 25% to be pre-existing as a result of a two level spinal surgery. Claimant asserts the synergy level of 30% in the prior case should be presumed to continue under collateral estoppel, a point the commission did not accept as the prior case addressed synergy between the neck and the eye instead of the shoulder and the eye.

The Commission did not address the issue of res judicata

The Commission did not address the SIF argument that it had already paid for synergistic effect on the prior eye in one case and was not mandated to pay a second time against a different body part.  The Commission noted the SIF argument  "could" have some merit  "under very particular circumstances" in the future.

The ALJ  awarded a 20% load factor.


The Commission further notes its preference to refer to parties as workers rather than claimants. which had been an issue with the prior Commission that the use of the word claimant (jargon used on the Division's own forms) was somehow pejorative. 
 
 Atty:  Chassaing, Lankford
ALJ :  Keaveny
Treater:  Nogalski
Experts:  Woiteshek
 
 

 https://labor.mo.gov/sites/labor/files/decisions_wc/PiersonThomas12-09814611-28-18.pdf

Tuesday, December 4, 2018

Claimant not stuck by stipulation to lower comp rate


T he Commission allowed a claimant to change his stipulation to a compensation rate which would result in manifest injustice when the employer had paid benefits at a higher rate based on actual earnings. Johnson v Value St. Louis Properties, 2018 MO WCLR 247 LEXIS 247 (Nov. 30, 2018)

The case demonstrates the parties are stuck with their stipulations, except when the Commission finds enforcement results in manifest injustice.

In this case, the claimant received TTD benefits at a higher rate for temporary benefits than the rate proposed in the stipulated facts.  Notably, the employer had offered  a wage statement which would have supported an AWW of $752, then withdrew it when it showed a rate higher than the lower stipulated AWW of $607.90, and then objected to the employee trying to offer it in  evidence. The ALJ admitted the statement, but felt claimant was stuck at the lower rate due to the stipulation.  The Commission reversed and found claimant entitled to the higher rate. 

The ALJ awarded 50% PPD from an accident moving a refrigerator resulting in multiple back surgeries.   The ALJ noted claimant had spent time in prison but it was not discernible from the testimony.

The Commission affirmed a denial of about 7 months in TTD benefits and opined the issue was not argued in the brief. 


ALJ:  Hart
Atty:  Hoffman, Flanagan
Experts:  Volarich, Dolan, Coyle






Tuesday, November 27, 2018

Failure to prove statutory employment defeats PTD claim against Fund

Lane v Via Boncourier (SIF only)
2018 MO WCLR LEXIS 243
Oct. 31, 2018

The Commission affirms a denial of benefits based on an failure to prove the claimant was an employee under the Act, with a supplemental report to address issues of statutory employment.  Claimant had sought permanent and total disability benefits from the Fund. 

The ALJ found claimant was self-employed.  The claimant sought an appeal and asserted she was a statutory employee.

Claimant entered an employment contract and asserted she was an independent contractor.  Her job was to deliver items and use her own vehicle.

The only dispute was   "whether employee's injury occurred "on or about the premises of the employer," the second  component of the three-prong statutory employment test.  The SIF argued that an accident on a public highway was not on or about the employer's premises.  

The commission applied strict construction and a dictionary definition of premises and found no intent to extend premises to include public highways and found claimant failed to prove all prongs of statutory employment to show she was a covered employee.

A dissent argued that premises must include roads because couriers did not perform their job function by remaining at one location. 

Claimant testified  her work involved at times a continuous 40-hour work environment, but the claimant controlled the means and method of her work and chose her routes of delivery. The claimant could choose to work at will and could refuse daily assignments if she so chose. The claimant's means and operation  of doing her courier work, which involved delivering blood products and bank documents to various individuals and entities, was at her discretion on the time and route of delivery as well as whether she chose to work that particular day. The claimant was reimbursed $ 14 per hour for her time period worked.

The ALJ noted:

"The claimant is deemed to be self-employed as evidenced by the multitude of facts in this case. The claimant candidly and freely admitted that she was not an employee of Via Bancourier, that she signed documentation to that effect. The claimant further admitted that Via Bancourier represented to her that she was not an employee and therefore  not covered under the Workers' Compensation Law. The claimant acknowledged that if she wanted workers' compensation coverage it was her responsibility to provide same. The claimant was not provided any benefits from the employer/insurer beyond the $ 14 per hour agreed upon wage. The claimant was further reimbursed 20 percent of her gasoline expenses for her mileage driven while in the course of her delivery duties. The claimant was further provided a 1099 with no withholdings at the end of every year for her tax records. The claimant testified that for most of the period while engaged with Via Bancourier she was able to work 40 hours per week, this was not guaranteed by Via Bancourier and the claimant could choose to work different hours if she chose. The alleged employer, Via Bancourier, did not execute any right of control on the means and matter of her service as long as the documents that were entrusted to her care were delivered. The duration of the claimant's employment seemed to be at her discretion in that she could choose the hours which she worked. The claimant testified that while engaged as a courier with Via Bancourier there was no expressed prohibition that she could  not engage in similar work for other couriers if she so chose. While there is no bright line of delineation of individual facts which determine whether an individual is an employee of an employer, the multitude of facts admitted to by the claimant in this situation describe an environment in which the claimant was self-employed as a courier doing work for Via Bancourier. The claimant acknowledged that she was not within the workers' compensation system as so engaged with Via Bancourier and chose not to avail herself of workers' compensation benefits."

The employer had settled the primary case for an unspecified amount. 

The ALJ issued no opinion regarding claimant's evidence supported an award of total benefits.


ALJ Siedlik
Atty:  Mayer, Alpough, Hinson