Wednesday, March 4, 2015

Commission finds prevailing factor with degenerative knee

 A worker in 2009 hyper-extended his knee while pushing a tub.  The Commission affirmed an award of partial disability benefits to the knee and future medical for total knee replacement.   Gladish v Enersys, 2015 MO WCLR Lexis 18  (Feb. 24, 2015).  

Claimant is 270 pound make in his 50s.  He initially had an arthroscopy which did not help and sought further treatment.    He had some limited treatment for his knee before the accident.  It is somewhat unclear whether this was fully disclosed in records to his providers.

The employer disputed accident but offered no evidence to dispute claimant's testimony how the accident occurred.  Claimant prior to the accident had been referred to an orthopedic surgeon for knee pain and had x-ray evidence of degenerative osteoarthritis.  The commission concluded the accident was the prevailing factor because claimant's prior condition was not disabling resulting in lost time or resulting in medical restrictions.  The Commission ultimately concluded the need for treatment including a total knee replacement flowed from the accident.  The Commission found claimant established prevailing factor making symptomatic a pre-existing arthritic condition. 

The Commission noted that the claimant could rely upon an expert to testify who was not licensed in Missouri and the employer had waived any objection by stipulating to the doctor's qualifications. 

Court reverses denial for unexplained fall

A claimant who fell 20-25 feet from a rail car and injured his neck and side could proceed with a claim for second injury fund benefits, according to the court of appeals which reversed a denial of benefits because claimant failed to prove "why" he fell. Gleason v Treasurer of the State of MO., WD 77607. (March 3, 2015).

The Commission found claimant established he had an accident, the accident was the prevailing cause of his injuries,  but he  did not show any accident that arose out of his employment because he did not identify a hazard or risk that caused him to fall.  The worker  had no memory of the event and could not explain why he fell.  There were no witnesses.

A worker injured at work has the burden to show that the injury resulted from a hazard or risk to which he would not have been equally exposed in non-employment life.   A worker must show a risk source different because he was at work.  In this case,  the court concludes the claimant did not have to show why he fell but merely that he fell, and that the distance of falling from an elevated height posed a greater risk of injury at work.  The claimant established exposure to a risk not shared by the general public because the general public does not spend time atop rail cars.

Gleason is factually distinguishable from many of recent denied cases that precede it involving level surfaces:   Miller v Mo Highways & Transportation Comn, 287 S.W.3d 671 (Mo. Banc 2009)(walking); Johme v St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo Banc 2012) (falling out of shoes);  Porter v RPCS, Inc., 402 S.W.3d 161 (Mo. App. 2013).(unexplained fall in bathroom).  Interestingly, the court  found Bivens v St. John's Regional Health Center, 272 S.W.3d 446 (Mo. App. 2008) no longer controlling authority and chose not to discuss it.  The commission relied upon Porter that claimant  who fell in a bathroom did not show why she fell so Gleason failed to show an injury arising from his employment. 

The court found the commission had an overbroad reading of Porter that every unexplained fall is not compensable.  A fall could be compensable from an unexplained cause if a worker identifies a risk source  and distinguishes the risk from non-occupational exposure.   Gleason had a viable case once he showed he showed injuries from the fall and that he was exposed to an unusual risk of injury not shared the general public and had no further burden to show why he fell.   The second injury fund did not offer any evidence to support an affirmative defense that he fell for any idiopathic reasons. 

The case was a remanded to review the ALJ's determination that the pro se claimant failed to prove any entitlement to second injury fund benefits through lack of proof on synergy.

The case reflects a  a trend of recent decisions chipping away at the legal defense of 287.020.3 to the point where positional risk is nearly always  factually distinguishable either by hazard or specific location.   Dorris v Stoddard County, SD 32830 (Jan. 31, 2014), 2014 MO App. Lexis 94 (stepping on a crack), Scholastic v David Viley, WD 77546 (Oct. 28, 2014)(snowy adjacent lot),  Pope v Gateway to the West Harley Davidson, 2012 MO App. Lexis 1335 (Mo. App. 2012)(risk of carrying a helmet with combined risk of descending steps).   The Commission has denied benefits based on common hazards,  Obic v St. Louis Antique Lighting, 2014 MO WCLR Lexis 144 (Dec. 30, 2014).    Gleason is not just an unusual fact pattern of rail cars, but has easy application to roof and stairwell falls and further reopens the historical debate to define risk sources from crocs to spike shoes. 

In the end this decision may be largely an empty victory if the Commission concludes that claimant had an accident arising out of his employment but still failed to prove synergy to support a SIF claim.  The employer settled the case before trial.  There is no mention whether there was any attempt to pursue FELA benefits which would require at least some proof of fault. 
 





Monday, February 16, 2015

Judge excludes video of claimant

The Commission affirmed an award of total disability to a 61-year old certified medical technician who alleges in 2010  a resident grabbed and twisted her arm and rendered her unemployable.   Burlison v Dept. of Public Safety, 2015 MO WCLR Lexis 10 (Feb. 6, 2015).

The case also addresses an unusual evidentiary issue and excluded two days of video.  Missouri  requires disclosure of video in response to a subpoena but not in response to a request for statements.  In this case, the claimant requested production in conjunction with a deposition  The employer indicated it had no duty to provide video obtained after the deposition because there was never a subpoena served nor any duty to supplement.  The ALJ found Rule 56.01(e) set forth a duty to seasonably amend a prior response to a request or production and excluded the video.

The ALJ accepted the disputed diagnosis of her expert that she developed RSD.   A psychologist testified  she became totally disabled due to major depressive disorder.  The ALJ found claimant's arm rendered her  totally disabled because he considered the arm could not be used and found additional chronic pain disorder and major depressive disorder.  The ALJ ordered open psychiatric treatment and additional treatment including a spinal cord stimulator. 

The claimant raises an unusual issue that the employer violated an employment practice and her benefits should be enhanced because she claims she was "segregated" and put in contact with a disruptive patient.  The ALJ found a lack of records to corroborate such a claim.  She alleges the
patient  allegedly touched her inappropriately, proposed to her, and drove by her home.   "There is nothing in the record other than claimant's testimony regarding any inappropriate sexual conduct or contact by a resident at the facility against her. As a result, I find and conclude that claimant has not met her burden of proof."


ALJ  House
Atty:  Platter, Freeland, Fleet
Experts: Abrams, Jackson, Swearingin



Commission won't lift under corporate veil

Claimant worked as a janitor for University of Missouri and  hurt his right shoulder swinging a mop and ultimately asserted he was unemployable in the open labor market. Marshall v Job Finders, etal, 2015 Mo WCLR Lexis 14 (Feb. 10, 2015). The Commission affirmed the award with additional findings related temporary agency, Job Finders, used by the university.

The ALJ found the temporary agency employed more than 200 people  and operated at the time of the accident without insurance and found the owner  (Williams) personally liable for worker's compensation benefits.  The employer had not answered a claim  for about two years and its corporate name varied slightly from the pled name.  Job Finders  did not file a timely application for review to the Commission either.

The ALJ allowed found both the temporary agency and the university were employers and liable under the statute. 

The Commission concluded its review was not limited to issues raised in applications as long as the parties had due process and additional time to address other issues.  The Commission noted in order to find an owner responsible that the owner needs to be named as a party in the original claim and the ALJ violated due process by asserted liability against the uninsured owner  It further noted that under strict construction required express finding the person is either an employer or an insurer and did expressly allow piercing the corporate veil. 

The Commission made a finding to pierce the corporate veil in   Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012).

ALJ  Ruth
Atty:  Hines, Murphy

Mo judge finds looking behind causes disc displacement

Claimant is a  36 year old terminated forklift operator who was awarded treatment in a temporary award for his neck for a condition that was essentially never treated, and became worse after he stopped working. Harris v Penske Trucking, 2015 Mo WCLR Lexis 13 (Feb. 10, 2015)

The ALJ indicated the case revolved around competing causation opinions of two neurosurgeons and adopted the opinion of claimant's expert that the worker turned his neck frequently on a daily basis for 4 years and this activity was a "mechanical mechanism" to narrow the foramina and cause a cervical  disc to become displaced.  The ALJ regarded claimant's symptoms about the neck as credible even though it found no medical evidence to support claimant's other "total body' complaints.

This Award "contemplates the medical causal connection of the C4-5 disc displacement,  and the effects/complaints caused by that displacement." The ALJ notes this included an award for surgery for 'displacement' but not necessarily for disc herniation.   The claimant had a disc 'bulge' when he stopped working for the employer and the employer argued that a 'bulge' was  a degenerative condition and disputed liability for a disc herniation and radiculopathy  identified at the same level about 2 years later.   The employer's expert appears to indicate that looking behind on a daily basis would not herniate a disc.


Atty:  O'Sullivan, Lemp
Experts:  Matz, Berkin, Kitchens

Commission finds daily activities as an "accident"

Accident is defined by law 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 Commission in a recent case affirmed a denial of benefits but added in its own opinion how it now interprets the statute.  Unexpected traumatic event doesn't mean just one even; it can mean several.    Barrientos v Ben Hur Construction, 2015 Mo WCLR Lexis 12 (Feb. 10, 2015).

The case involved a career ironworker who alleged his back hurt the next day and he attributed the cause to a variety of different activities.  After undergoing back surgery, the claimant did not remain employer  with his employer.   His expert attributed the onset to him walking in a parking lot, although the claimant stated this history was incorrect.  The ALJ ultimately denied benefits which the Commission affirmed.  The Commission noted it interpreted "unexpected traumatic event" included both singular and plural causes and that an accident could be "a worker's activity of repetitive lifting throughout a single work shift."  The Commission in a 3-0 vote also concluded the statutory use of the phrase "at the time" didn't mean symptoms had to occur "immediately" and the only thing a worker had to prove was an "accident" in a single work shift.  It declined to address whether experiencing no symptoms until lying in the bed the night of the work shift satisfied the statutory definition of an accident.  "We need not determine the legal question whether employee's history at trial of experiencing no symptoms whatsoever until lying in his bed the night following the work shift constitutes an accident."

The Commission  softened its interpretation of the  definition of accident  on a 2-1 vote  in Bisch v City of University City, 2013 Mo WCLR Lexis 137 (August 2, 2013) in which he deemed plantar pain after working 13 hours refinishing floors satisfied the requirement of an accident.  The interpretation opens access to worker's compensation benefits for workers with symptoms who have not worked long enough to reasonably develop occupational diseases but cannot recall specific events to identify a traditional accident.   This case is a series of recent FYI supplemental opinions in which  explain how the new Commission now interprets the statute differently from many experienced ALJs. 

ALJ Ottenad
Atty:  Padberg, Temme, Hudson
Experts:  Margolis, Chabot
Treater:  Yoon

Thursday, February 12, 2015

Absence of treatment weakens knee claim

A 55 year worker alleges he is totally disabled as a result of alleged injuries to his back and his knee.  Pannell v Mo Dept of Corrections, 2015 Mo WCLR Lexis 9 (Feb. 5, 2015).  The Commission affirms an award of partial disability. 

Claimant was a corrections officer who 'did the splits' when he fell and hurt his back.  He had back surgery. At some point after the back surgery his records document knee symptoms.  His expert concluded he would need a total knee because he 'made symptomatic' an arthritic knee.  His vocational expert indicated he was unemployable in light of his prior medical conditions and what he regarded as new injuries to the back and knee.  A surgeon indicated that claimant's knee may have become more symptomatic because of immobilization during the back surgery. 

The ALJ found no evidence of a new knee injury, no new structural change, no contemporaneous treating records, and no mechanism at the time of the accident consistent with a knee injury.  A dissent found claimant PTD even without consideration of the knee as a Fund combo and indicated:  "It appears to me that the Commission majority, while sympathetic to the plight of this seriously disabled individual, is operating under the mistaken impression that expert testimony is needed to establish that employee is permanently and totally disabled even if his left knee complaints are set aside. I disagree with such a proposition because, as I have demonstrated, it finds no support in the Missouri Workers' Compensation Law."

ALJ:  Fisher
Atty:  Van Camp, Edelman, Mueller
Experts: Stuckmeyer, Marberry, Gross, England