Friday, October 31, 2014

New decisions warn Missouri employers in comp cases

A lot has been going on in Missouri in worker’s compensation in recent court decisions.

Easier wrongful discharge suits against employers

Templemire v W&W Welding, Inc., 433 S.W.3d 371 (Mo. 2014) slammed opened the door for more suits against employers who fire workers after their comp injuries.  It lowers the burden of proof of discrimination from an exclusive factor to a contributing factor.
The relationship with his supervisor was contentious as claimant obtained new permanent restrictions.  When claimant refused to perform a task and insisted he was still on his break, the employer fired him for insubordination.  In some respects, the case was the classic example of 'be careful of what you ask for.'  The employer coached his employee to stop "milking" his injury and if he didn't like it he could  "sue him for whatever reason, that's what he pays premiums for and the attorneys."

Reactivation provision triggers more care
Pierce v. Zurich American Ins. Co., WD 77095 (9/9/2014 Mo Ct. App. 2014), 2014 MO App. Lexis 968,  involved a case in which the employer appears likely to get stuck with the cost of a total knee replacement when it disputed causation and settled the case a month earlier.

 A month after the settlement claimant demanded more treatment for a total knee on the reactivation statute, 287.140.8.  At the time claimant knew he would need a total knee replacement in the future.   The carrier disputed any need for a TKR flowed from the accident.  An important issue in the case is that the employer agreed to leave medical open for a year, it adopted “boiler plate” language to adopt 287.140.8 as a term of the settlement, and it did not specifically exclude conditions or treatments which it disputed.  The carrier refused to authorize the requested treatment based on expert opinion that any TKR was not work related.  The decision was basically a jurisdiction issue and that claimant had to fight his fight with the Commission first and not in court.  At its core was a warning that agreements to leave medical open may leave the employer on the hook whether they dispute causation or not.

The case didn’t address the bigger issue whether statutory  re-activation could be waived with consideration to a represented claimant  or whether the entire provision may be redundant as a matter of public policy as MSAs have pre-empted future medical within the purview of 287.140.8.

Commission closely scrutinizes settlements

The commission has always exercised its statutory authority to approve or gut settlement proposals.  Hinkle v A.B. Dick, 435 S.W.3d 685 (Mo. App. 2014)   is important for two reasons:  it shows what the Commission tried to do, and it shows what the Commission had authority to do. 

The Commission thwarted approval of the settlement because it considered a settlement that did not represent the commutated value was not in accordance with the rights of the parties.  The court disagreed.  The Commission’s only proper statutory standard for approving a settlement was whether there was of undue influence or fraud, the employee fully understands his or her rights and benefits and voluntarily agrees to accept the terms of the agreement.  What is important to remember is that he worker was represented by counsel.

Equal exposure defense gutted

The court of appeals in Scholastic v David Viley, WD 77546 (Oc. 28, 2014) rejected the employer’s argument that a case was not compensable if claimant had an equal exposure to the hazard of falling in icy parking lots away from work because equal exposure according to the court exposure to the same hazard at the same place.  This interpretation conflicts with other cases and means that equal exposure may no longer serve as a viable defense except in very rare cases just as the icy season approaches. 

 Fitness for duty exam sinks employer

A jury awarded $50,000 in compensatory damages and 1/2 million in punitive damages. Bowolak v Mercy East Communities fka St. Johns Mercy Medical Center, ED 100502 (Oct 28, 2014), 2014 MO  App. Lexis 1219, when an employer fired claimant with an open back comp case because it appeared he had obtained a physically demanding job when records suggested he may had permanent restrictions when he was hired after a prior back surgery.

The employer obtained fitness for duty exams which indicate claimant could work unrestricted duty after a prior multi-level back surgery.  The jury questioned the employer's reliance upon an older document inconsistent with the employer's own doctors.   

No equal exposure defense for parking lot fall

A worker who injured his knee falling on a snowy adjacent parking lot while leaving work was awarded benefits.    Scholastic v David Viley, WD 77546 (Oc. 28, 2014)

The ALJ denied benefits.  The commission found that the employer "controlled" the lot and the case was compensable even though it did not own the property.  The employer asserted it had not much control over the lot and that claimant had equal exposure of falling on ice away from work. 

The court found that there was evidence to support the finding that the employer controlled the lot.
 287.020.5 requires that claimant show the employer controlled the lot if it didn't own it because statutory reform abolished compensation for parking lot injuries that arose on property not owned or controlled by the employer.  The court relied upon a lease provision that allowed the employer to exercise control to exclude visitors and that the employer in the past had excluded persons and required the landlord to maintain the lots as a condition of the lease. 

The court noted since claimant was "at work" and the accident arose out of a hazard (ice) while doing the employer's business  (leaving work) and there was no equal exposure defense under 287.020.3(2) of the "specific" risk because claimant had never been exposed to ice at the exact location when he was not working.  The court relied upon Duever v All Outdoors Inc., 371 S.W.3d 863 (Mo. App. 2012), another slip on ice case, that claimant only needed to show they were at a hazard of slipping on ice arose because exposure to ice was a condition of employment.  Similarly, in Dorris v Stoddard County, 436 S.W.3d 586 (Mo. App. 2014) the claimant fell on a street crack and the employer lost on the equal exposure defense that just because claimant  never encountered the hazard of slipping on the specific crack involved in the accident.  

The equal exposure defense requires consideration  that work is a different hazard or an increased hazard to access comp benefits and not merely that it is different solely on location alone. Viley,
 like Dorris, produces an absurd result that  limits the employer's defense of equal exposure so narrowly that 287.020.3(2)(b) applies only upon proof that claimant sustained the exact hazard in a non-employee capacity in exactly the same location before the accident.   If a worker is injured on property that is not open to the public there can never be an equal exposure defense because only employees would be equally exposed.    Viley follows Dorris  like a lemming leaping off a cliff into a drop of absurdity.


Wednesday, October 29, 2014

hospital owes 1/2 million punitives after firing comp claimant

A hospital worker claimed he was discriminated based on the MHRA when he was fired because he was deemed unable to perform essential job duties based on permanent restrictions of a doctor who fused his back  for a work comp injury with a prior employer.  The restrictions surfaced as part of an investigation when he reported a new back injury.  Bowolak v Mercy East Communities fka St. Johns Mercy Medical Center, ED 100502 (Oct 28, 2014), 2014 MO  App. Lexis 1219   A jury awarded $50,000 in compensatory damages and 1/2 million in punitive damages.

He disclosed the prior worker's compensation injury when he was hired and indicated that he required medication for his back. He stated he was completely unaware of permanent restrictions from his former doctor.  The court questioned whether the restriction was permanent or not based on a description of restrictions "at this time."  The hospital obtained several physical exams which did not trigger restrictions.  The hospital refused a request from EEOC to re-instate the worker.

The worker pursued a cause of action under 213.111 which required the worker to show:  he is legally disabled, he was discharged, and the disability was a factor in the discharge.  The worker established a record of impairment by a previous settlement of 32% and his representations when he was hired that his back was never the same and that he was regarded as disabled because he was fired on the prior restrictions that he couldn't do his essential job duties.  The jury rejected the defense that the hospital's invitation for him to reapply for something else was not the same as a discharge.  The worker also established that discrimination was a contributing factor. 

The court concluded: "the use of a seven-year-old document as a basis for termination of a good employee was at a minimum reckless misconduct by Mercy " and found the hospital acted "reprehensible" and "outrageous."   The worker relied upon an opinion from a defense expert in the prior comp case that after a fusion he did not require any permanent restrictions.  The court allowed the jury to see the prior comp settlement of 32% but did not allow the jury to see that he recovered nearly $55,000 in the earlier because because it deemed the actual monetary recovery too prejudicial. 

The new worker's compensation claim to his back involved pushing a 500 pound cart.  He was employed as a care service associate.  The restrictions in the earlier case limited his capacity to 50 pounds. 

The court awarded $81,500 in attorney's fees and noted a "reasonable" rate of $250 an hour after it reduced the submitted fees by about 10%.    The court further granted an additional  motion of $17,650 in attorney's fees.  The court noted the worker did not seek to recover time in pursuit of comp benefits in the new back injury. 

Several things are interesting about the decision from a comp perspective.   The suggestion is that  claimant misrepresented his capacity to work and as a result of violating his work restrictions he has triggered a new comp claim to the same party of the body.   The lesson to the employer is that it has created its own problem by a securing a fitness for duty exam that perhaps was a little too cursory and allowed a person with a two level fusion to go back to pushing 500 pound carts.  The court notes the worker  asserts he "didn't know" about  for prior restrictions.  It is unclear whether he obtained any expert opinions in the prior case that may have addressed capacity to work before settling a case for nearly 1/3 of a man.   

Hoff, Sullivan, Hess (Div 2)
Atty:  Radice, Paul (Ogletree)



Tuesday, October 28, 2014

Light duty and suspended animation

The court of appeals dealt recently with a common problem to many employers:  what do you do with the claimant who is on light duty until further notice?  Atwill v Fitzimmons, 2014 mo App. Lexis 1181 (Oct 21, 2014).

Fitzsimmons was a state employee for the department of corrections.  He fell out of his truck and hurt his ankle.  After six months he still wasn’t back at work.  The state had enough and sent him packing.  They normally would have kept him on light duty because they had a policy on accepted claims to allow light duty but on disputed claims employees could only stick around as long as their FMLA and PTO lasted.    They thought Fitzsimmons didn’t have a compensable case so:  hit the road, jack.

Fitzsimmons sued.  He claims he was entitled to comp benefits.  He sued to get his job back on appeal as a public employee on the merit system.  The AHC under the statute could let him go back to his former job but couldn't tell him to go to a new job.  Instead, the AHC told the employer to get him light duty.  The court told them AHC did not have the authority to do that, which effectively left Atwill still out of a job with a chance to reapply when he met the physical requirements to go back to driving.  It's not really a termination:  it's a sabbatical. 

The court pointed out that Fitzsimmons  always had a remedy through comp to get back pay through TTD if his injury was really  job related and if he was let go for exercising his comp rights he could have another claim for retaliation.  The slow progress of the comp case is not explained.   AHC committed a comity of errors to not let the Commission first decide if he had a compensable injury or not.  In effect, AHC was slapped doing more than it had to do and trying to carve out a remedy of light duty that was offered to other state employees. 

The court in Atwill  reminds employers that life is filled with hard choices.  Every comp decision has attendant risks.   Don’t provide benefits and the Commission can snap back with back pay and sanctions.  It suggests that that DOC may have some good faith reasons to question the accident but at the end of the day it didn’t mean they would prevail or that DOC might not get sanctions for firing the claimant.   The court seems to suggest there may be something in 287 to require an employer provide accommodation.    There may be federal remedies for failure to accomodate but there is no statutory cause of retaliation under 287 for a breach of a duty which does not exist. 

Friday, October 17, 2014

pro se nurse loses claim for unexplained fall

A nurse supervisor fell in 2011 while walking to the nurse's station but could not recall how or why she fell.  She reported to her doctor that her knee gave out while at work.  The Administrative Law Judge made findings that the employer "forced to work and coerced because she needed benefits to pay for her medical bills" and ultimately fired her.  (emphasis added).   Scott v Bellfontaine Garden Nursing Center and Rehab., 2014 Mo WCLR Lexis 121 (Oct. 7, 2014)

The Commission affirmed a finding that claimant failed to prove falling while turning arose out of her employment.  "There is no indication she tripped over anything, there is no indication she was performing any work activity when she fell, and there is no indication there was anything on the floor to cause her fall. There is no explanation as to why she fell." She failed in her obligation to show an accident arose out of her employment. 

Dr. Woiteshek, claimant's expert, concluded claimant had internal derangement from falling, but does not provide any explanation as to why claimant fell. 

The case demonstrates the Commission bending over backwards not to procedurally default a pro se claimant even when the application is not a model of clarity.  The Commission rejected attempts by the employer to dismiss the application for failing to meet the state requirements than any appeal state the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported.  Claimant asserted "My lawyer did not give information of condition at work that caused injury. Working condition were so rushed and stressful do to administration cut back on staffing and I had 5 plus job duty's and my lawyer did not present it in court." In essence, claimant files the comp equivalent of a 29.15 motion that her lawyer blew it so she gets another bite although no such remedy exists.  The commission considered the belated motion filed by counsel and then over-ruled it.

The  finding that the claimant was "coerced" to work on the threat of losing comp benefits  is somewhat puzzling.  The employer tendered medical benefits in a case that the judge herself did not find compensable.  It is not exactly clear where there is coercion when the employer provided more benefits than it was legally required to do. 

This case is one of several post-Miller progeny placing workers that arising out of and in course of employment is a two-step.

ALJ:  Hart
Atty:  Cordes, Reidy
Experts:  Woiteshek

Thursday, October 16, 2014

287.170 and the post-injury "misconduct" defense

The recent re-definition of “misconduct” in Missouri unemployment law could trigger more defenses under 287.170 to contest TTD liability for injured workers  who are terminated for misconduct.

 A thorny problem for many Missouri employers is what to do with the injured worker who comes back to work on light duty and becomes, for lack of better word, a problem.

 Section 287.170.4 provides : If the employee is terminated from post-injury employment based upon the employee's post-injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section or section  287.180 are payable. As used in this section, the phrase "post-injury misconduct" shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician
Let’s just call our injured worker, “Bob.”  He is now at light duty. Bob reports to his job as a deboner at the chicken plant, grousing about having to work when he isn’t frequently in the toilet on breaks sexting, smoking weed or sleeping.  He is fired on lunch break when he makes unwanted sexual advances to a new junior floor supervisor over a bag of stolen cheese puffs.

 Bob has been fired many times by people who just don’t understand him and his doors of perception.    And Bob winks at the floor supervisor:  “You going to send my disability or do I need to come by to pick it up?” The employer shrugs and wondered who hired this son of a gun. 

 Bob’s employer must pay TTD until Bob is at MMI.  There are a few exceptions in the MO comp  statute to suspend TTD such as not attending exams or blowing off medical appointments  and that sort of thing. None of those apply here.    Then there is the neutron bomb in 287.140.   An injured worker loses his right to TTD for post-accident misconduct while on light duty.  

 Bob may have forgotten about his multiple felony convictions when he was hired 2 days before his accident.  There’s no relief in 287.140.  That misconduct describes pre-accident misconduct.  Bob’s injury was because he was stoned.  That’s accident misconduct.  Bob is a first class slacker when he comes back to work.  Is his lack of esprit de corp and poor work quality “misconduct”?  Probably not.

 Bob stole from his employer. The cheese puffs were stolen.  That works, right?  In Illinois, no.   Illinois has found that Wal-mart may fire a worker stealing cigarettes, but doesn’t have the right to suspend TTD benefits.  There is no statutory equivalent in Illinois  to Missouri's 287.140.   In a recent case of Matusczak v the Illinois Workers’ Compensation Commission, 2014 Ill App. Lexis 713 (Sept. 30, 2014)  Wal-mart asserted that it shouldn’t have to pay 23 weeks of temporary benefits when claimant returned on light duty and was fired because he admitted he committed a crime (stealing cigarettes), and knew stealing was a crime that warranted termination.  As there is no statutory provision to suspend benefits because of termination for cause or volitional conduct there is no statutory remedy for the employer to stop TTD without medical proof that the medical condition is stabilized.  Claimant asserted there was no work available in the open labor market within his restrictions  even though he  said he really tried to find something.   

Missouri does not provide a bright line test to clearly provide flexibility on a case by case basis.
287.170.4 defines what is not misconduct but does not say what is misconduct.  That's the equivalent of giving directions from St. Louis to Chicago by saying, "don't go toward Dallas." 

Missouri disqualifies injured workers from collecting TTD while collecting unemployment which presumes a capacity to work. inconsistent with an incapacity to perform any work.  This creates an odd incentive for employers not to protest unemployment claims in order to avoid TTD obligations.
 Missouri’s unemployment changes stepped away from the higher 'willful and wanton' standard but clearly permit benefits in lower cases of misconduct even in the reform definition of 288.030(23).
 The recent statutory redefinition of misconduct arguably gives it more “teeth” against the Bobs of the world. At the same time new cases like Templemeire  make life easier to sue employers for retaliatory discharge under 287.780  and  survive summary judgment.

Section 288.030(23) was amended in Senate Bill 510 to redefine misconduct. Misconduct  must be connected to work and includes a knowing disregard of the employer’s interests, a knowing violation of a company standard; careless or negligence in such a degree to manifest culpability, wrongful intent, or knowing disregard of the employer’s interests, duties or obligations. 

 So that applies to comp, right?  Not so fast.   The Missouri commission declined to adopt an opinion that applied 288 definition of misconduct to construct what “misconduct” means in chapter 287  Jones v Harris Transportation, 2009 MO WCLR Lexis 173.  We do not adopt or incorporate the administrative law judge's discussion and conclusions with regard to whether employee committed post-injury misconduct for purposes of 287.170.4."

There is unlikely to be any significant increase in "misconduct" comp defenses despite the changes to the unemployment definition of misconduct.  Most employers who have fought that battle against unemployment benefits know the difficulty of proving “enough” misconduct.   While workers who misbehave may lose their jobs they are far less likely to lose TTD.

The reformers in Missouri may have seen this coming.  Many employer have anecdotes of the Bobs they have had to deal who misperceive a  pending comp claim as a shield against any reprimand. 
The idea that a worker who behaves badly should lose benefits resonates with business reformers. Yet forfeiture runs contrary to the general theme of comp as a statutory benefit without assessment of fault.  Throwing someone on the streets who has significant medically-related work restrictions may be perceived as abusive when the misbehavior appears trivial.   It is for this reason because of its profound financial impact the defense is likely to prevail only in  the most egregious misconduct.  



Wednesday, October 1, 2014

Over-stated symptoms become headache for claimant

Claimant sustained serious injuries after a work accident in 2007 but the ALJ found he was not persuasive that he had severe migraines that made him a total.   Claimant fell from a ladder, broke several ribs, had spleen surgery  and had underwent surgery for a rotator cuff tear.  Mountjoy v Curators of the University of Missouri, 2014 MO WCLR Lexis 118 (Sept. 24, 2014). 

Claimant asserted that he had severe migraines that rendered him bedridden several times a week.  He obtained expert opinion from Dr. Koprivica that he was unemployable if he had severe headaches that occurred frequently and unpredictably. 

Dr. Rengachary, a neurologist, questioned the severity of any recurrent headaches, and considered the reports inconsistent with the type of medication, the infrequency of visits, and the level of activity and his behavior compared to other migraine patients.   Claimant had limited care, his treating records were not consistent with his testimony regarding the severity of symptoms and he had a 5 year gap in treatment.  The ALJ  noted:   "It would seem that someone like Claimant would use the Internet  to  research migraine headaches or locate a headache specialist. (Claimant clearly knows how to use the Internet, as he is very active on social sites.) Claimant, however, has never done any of this." [Does anyone under 50 not know how to use the internet?]

Dr. Friscella found medical findings were inconsistent with an acute injury to the shoulder and radiology suggested the tendon pathology was essentially unchanged from years earlier when he had a prior cuff repair.
The case demonstrates successful use of impeachment integrating expert opinion, surveillance and even case manager notes.    ALJ Dierkes noted it was an  "epitome of understatement to say that Claimant's credibility has been undermined."  

Impeachment has its limits. Claimant still prevailed on a fairly typical award for a shoulder surgery despite the only shoulder expert indicating there wasn't anything new, an open medical award for headaches, and a combined award in excess of $50,000. The Commission affirmed the award without comment. 

ALJ Dierkes
Atty:  McQuilkin