Tuesday, June 19, 2018

Commisison awards Total Knee surgery after settlement

The Commission reversed a denial of benefits and allowed claimant to pursue further medical care, including a knee replacement, a month after settling a case. independent of the reactivation provision when the parties agreed to leave medical open for a period of time. Pierce v Bedrock , DOLIR 6-14-2018  (2-1 decision)

Claimant in May 2012 agreed to settle his case with the provision to keep medical open for one year and to allow medical to remain open pursuant to 287.140.8.  In June, the following month, claimant demanded more care.  The employer tendered care, and the doctor indicated claimant's need for total knee replacement was unrelated to the work injury.

The case was appealed and remanded to allow claimant to pursue his claim under the reactivation provision (287.140.8).  The employer objected that claimant failed in his burden to show good cause to trigger a duty to provide care under the reactivation provision. 

The Commission finds "good cause" under 287.140.8 to include any reason that is based on equity or justice or would motivate a reasonable man.  The commission finds the need for total knee replacement to be related, and orders treatment.

The Commission noted the agreement to leave medical open vested jurisdiction with the Commission to determine the scope of an "open" claim, citing State ex rel ISP Minerals, Inc. v Labor and Indus. Rels. Comm'n, 465 S.W.3d 471.  The commission found this agreement vested jurisdiction to provide future medical treatment independent of the re-activation statute.

Thursday, June 7, 2018

Using meat slicer related to cuff tear according to commission

Amber Dockery v Dierbergs Markets Inc.
June 7, 2018

A 64-year old meat cutter employed more than 20 years established her cuff tear arose from repetitive trauma in part from cutting up to 400 slices of meat and cheese during a shift and "continuously" using her arm to cut meat and lift boxes, according to the Commission in a 2-1 award, which reversed a denial of benefits.

The ALJ noted claimant's evolving history of a work related event until after an MRI identified a cuff tear with her shoulder, and she had originally attributed to sleeping on her arm "funny.".  The ALJ deferred to the opinion of Dr. Nogalski who found the claimant's condition arose from degenerative changes not impacted by her job duties or any lifting accident.  The ALJ  noted Dr. Nogalski's expertise as an orthopedic surgeon who currently performs shoulder surgeries, unlike claimant's expert.

The Commission reversed on its de novo assessment of credibility of the experts.  It  found Dr. Nogalski's opinion was less persuasive because it was based on incomplete factual information about her job duties such as how often she lifted boxes or "the weight of the slicing machine" and his personal observation of meat cutters in stores.   Dr. Schlafly, claimant's expert, attributed the cause of her cuff and biceps pathology was from progressive tearing. 

The Commission awarded more than $51,000 in bills, 12 and 4/7 weeks in TTD and PPD of 35%, noting the absence of any PPD opinion offered by the employer.  Dr. Schlafly  rated the shoulder at 40% PPD.

The new commissioner Forrester wrote a short dissent indicating he would have affirmed the original award without further explanation.

ALJ Keaveny
Atty:  Hoener, Kowert
Experts:  Schlafly, Nogalski
Treater:  Sigmund

Wednesday, June 6, 2018

Party Like It's 1999

What's old is new again.

People are talking again about party drugs to fix PTSD.

This idea has made all the buzz lately because about 2 dozen veterans in a phase 2 study reported using ecstasy helped them deal with their PTSD symptoms.  Researchers have been flirting with this issue for more than a decade but it's now back in the headlines.

Now research is going into phase 3 trails expected to cost $27,000,000. That probably does not include even the cost of incense. 

This is a familiar ride on the magic carpet to find unconventional solutions such as pot and LSD  to try to cure and relieve intractable symptoms. Many veterans report conventional treatment for PTSD is ineffective.  The therapy involves lying on a futon, with candles and fresh flowers and tripping 8 hours as the drug to flood the brain under the careful watch of two therapists. 

The New York Times provides a detailed article which follows the money.  The research is funded by the Multidisciplinary Association for Psychedelic Studies. The New York Times reports donors  include the Mercer family, an anonymous donor who paid $5 million in Bitcoin, and Dr. Bronner, the Cosmic Engagement Officer for Dr. Bronner's Magic Soaps. Merck's  patent for MDMA lapsed and MAPS would get a five year monopoly if MDMA becomes legalized for wide-spread use. 

More information can be obtained in Dave Phillips excellent article "Ecstasy as a Remedy for PTSD? You Probably Have Some Questions." in The New York Times.

Friday, May 25, 2018

Grab those June CLEs

I will be a speaker at several seminars in June.

JUNE 14  - ST LOUIS  - What lawyers can and cannot say online, about judges and about opposing counsel

 Legal Ethics: Hot Topics and Current Events
 1/2 day seminar sponsored by National Business Institute
 Holiday Inn St. Louis, Forest Park


JUNE 15 - ST. CHARLES - Workers Compensation

 Annual Law Update
10 hour CLE seminar sponsored by the Missouri Bar
St. Charles Convention Center. 


JUNE 25  - BERKELEY, MO  Strategies for Workers' Compensation hearings

Workers' Compensation from A to Z
14.4  CLE seminar sponsored by NBI (June 25-26)
Hilton Garden Inn.


Wednesday, May 16, 2018

IL court of appeas bars reduction of comp lien for alleged misconduct

In re Estate of Arnold O Rexroad, Sr., 2018 IL app (5th)  170342  filed 5/15/2018.

A carrier sought the court to adjudicate its  comp lien from a 1.38 million dollar settlement for a wrongful death.

The estate sought to extinguish a remaining lien due to alleged misconduct of the carrier/trust on equitable grounds 

Section 5(b) provides:

“Out of any reimbursement received by the employer pursuant to this Section the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.” 820 ILCS 305/5(b) (West 2016)."


The carrier argued:  " due to the size of the wrongful death settlement and its maximum workers’ compensation liability, it should be entitled to suspend payments to the decedent’s widow, except 25% of its weekly payment obligation for its statutory share of attorney fees, which it represented would be $120.40 per week. However, MTRMA argued that, due to the Estate’s alleged malfeasance in distributing settlement proceeds without obtaining MTRMA’s consent or protecting its lien, it should be relieved of its obligations to pay its share of attorney fees in the form of reduced weekly payments and should be granted its fees and costs associated with recovering its lien pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013)."

"The Estate argued that MTRMA is not entitled to the remainder of its lien due to the following allegations of wrongdoing on the part of MTRMA: (1) direct communications with the family of the decedent despite knowing the Estate was represented by counsel; (2) obstructing the Estate’s counsel in investigating the wrongful death action by prohibiting the Estate from interviewing its employees, refusing to produce the truck and trailer the decedent was driving for inspection, and providing its inaccurate “alive and well” investigative reports to the defense; (3) failing to pay the decedent’s widow the full amount of workers’ compensation benefits owed; 3 (4) demanding a distribution toward its lien from the Measel settlement; (5) objecting to an unspecified amount of costs claimed by the Estate as required to effect a settlement of the remainder of the Indiana action; and (6) seeking to recalculate its pro rata share of costs in light of the settlement of the remainder of the Indiana action, which the Estate characterized as a “reneg” of its prior agreement to pay its share of costs at the time of the Measel settlement.:

The court of appeals determined:

The Estate did not cite, to the circuit court or on appeal, any Illinois case that suggests that a circuit court has the power to limit or strike an employer’s lien based on conduct on the part of the employer or its insurer. Every Illinois case cited by the Estate on this point either had nothing to do with the conduct of an employer or its insurer or did not deal with a workers’ compensation lien. The only cases cited by the Estate in support of its position come from Delaware and Pennsylvania, and the Estate emphasizes the Delaware Supreme Court’s opinion in Baio v. Commercial Union Insurance Co., 410 A.2d 502, 506 (Del. 1979), supports the circuit court’s order. We find this case to be unpersuasive and distinguishable."

The court held:

 "The August 4, 2017, order of the circuit court of Effingham County, which struck, in its entirety, MTRMA’s workers’ compensation lien, is reversed, and this cause is remanded with directions that the circuit court, after the benefit of further briefing and a new hearing, adjudicate MTRMA’s lien in its entirety in accordance with Illinois law and reconsider MTRMA’s motion for Rule 137 sanctions in light of this opinion. "

Tuesday, May 15, 2018

PTD affirmed for cuff tear from stripping turkeys

The Commission affirms a total award for a shoulder injury but modified  an award of TTD while claimant also collected unemployment benefits.  Duarte v Butterball Inc., 2018 MO WCLR LEXIS (May 10, 2018).

Claimant alleged repetitive trauma while working for several months to remove meat from turkeys.  Claimant immigrated to the United States when he was 63 years old  and speaks limited English.  Claimant denied prior symptoms.  He treated primarily for a cuff tear.

The ALJ found causation and awarded PTD and more than a year in temporary disability benefits.  Claimant's expert, Dr. Volarich, imposed permanent restrictions and rated 40% PPD.  Dr. Parmet attributed claimant's condition to arthritis. Eldred felt claimant's physical restrictions prevented him from working and no one would hire him.  Drieling felt he was unemployable but not due to the last accident alone.  Claimant contends the employer would not rehire him.

The ALJ awarded future medical and noted "hardware" from the surgical procedure.  The summary of the two surgeries does not mention hardware so it is unclear what hardware was involved in a cuff tear.

The ALJ awarded benefits of PTD after 2010 noting the last date of a exam by the treating doctor despite the absence of a finding of MMI.

The employer appealed and claimed the lack of evidence to support MMI.

The Commission relied up a 2013 IME report from Dr. Volarich as a basis to make a finding of MMI. 

The Commission modified an award of nearly a year of TTD benefits and  agreed claimant was not entitled to collect TTD when he also collected unemployment benefits for periods in 2010 and 2011 based on 287.170.3.

ALJ Wood
Atty Newman, Bullock, Pierce


Missouri finally fills empty seat for employer on Commission

The Labor and Industrial Relations Commission announces the appointment on May 10 of a representative for the employer, Reid K. Forrester(R). 

Reid has a long career as a public employee as chief of staff, an employee at the department of corrections and as a prior mayor of Poplar Bluff. 

The Commission is not allowed to have more than two members of the same party.  The Commission has been  staffed exclusively with Democrat-appointments for 15 months. The representative for labor, Curtis Chick, has a term that expired on July 27., 2014.  John Larsen, he attorney representative "for the  public" expires on June 27, 2018.

Senate consent is required for appointments.