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

Wednesday, September 24, 2014

Punch in mouth aggravates PTSD for SIF total

An unruly patient who punched claimant in the mouth knocked her out of the labor market, according to the Commission which affirmed a total disability award against the second injury fund.  Seldon v St. Louis Psychiatric Rehab Center, 2014 Mo WCLR Lexis 110 (Sept. 16, 2014). 

The claimant was a 64-year old nurse who was attacked twice by different patients over a 6 month period.    In the first case she was trying to break up a patient fight and was stabbed in the side by a pair of scissors.  In a second assault she tried to stop a fight between a patient and the doctor and she had a superficial injury to her mouth.  After the first accident she began treatment for PTSD.  After the second accident her PTSD treatment continued.  The treating psychiatrist indicated she could work but should avoid direct patient contact because she became insecure.

 SIF liability requires proof of synergy which historically has been problematic when injuries involve the same body part (back on back, for example) or the same diagnosis (PTSD on PTSD, in this case). The ALJ  relied upon expert testimony that the total disability was a combination of the two separate accidents  to trigger second injury fund liability.

The employer settled before the hearing.   The ALJ noted weaknesses in the Fund's defense which offered no evidence to support its denial of accident. Its own vocational expert could not identify a single job that claimant could perform with 20 years of nursing experience. 

ALJ Denigan
Atty:  McChesney
Experts: Liss
Treater:  Packman


Tuesday, September 9, 2014

Dysfunction junction, what's your function?

There’s a new way to tap the second injury fund:  bad parents.

The Fund provides compensation when prior conditions combine with a new work accident. This rationale applies easily with contralateral orthopedic injuries.  The commission has recognized it also applies to systemic impairments like incontinence and obesity.   What is often over-looked is that Fund liability may also be based on bad parents.

The relationship between childhood trauma and work-place disability has received limited scientific study.  There appears to be a relationship between adult disability and experiencing  neglect, abuse or witnessing violence according to an older study, “Childhood Trauma and employment disability” in Int. J. of Psychiatry Medicine. 

The Commission has noted this impact of chaotic childhood on an ability to maintain employment. 

In the recent case Collins v Aztar Corporation, 2014 MO WCLR Lexis 103, the commission considered uncontested psychiatric testimony that claimant’s psychiatric disability from abusive experiences as a child contributed to her overall inability to work. 

In Brawley v City of St. Louis, 2010 Mo WCLR Lexis 10, an expert related a dysfunctional background on an inability to getting along with co-workers and anger management issues with supervisors. 

In Royal v Advantica, 2005 MO WCLR Lexis 89, an expert indicated that  the absence of a nurturing childhood caused workers to seek approval and dependency on physicians. 

In Nyberg v Ford Motor Co., 2008 MO WCLR Lexis 31, it was suggested that dysfunctional childhood predisposed the worker to chronic pain issues. 
In Sullivan v Advanced Drywall Systems, 2006 Mo WCLR Lexis 184, the ALJ denied benefits when claimant never sought treatment for a chaotic, disruptive and difficult childhood.   It was “highly doubtful” claimant considered the experience still affected him. 

The issue of bad parents remains a viable element of a PTD psych claim involving the Fund even though reform eliminated PPD recoveries for accidents after January 2014.   Fund liability derives from  the potential the condition may combine with a work injury.   Nearly everyone can be regarded as disabled.  Any injured worker can tell a story about not getting along with siblings or fighting with parents or times when life was not fully nurturing.  But why stop at mommy dearest?  How about difficult children or ex-spouses?   How about mental suffering dealing with a special needs cat?
It is one thing to suggest that dysfunctional families may damage some workers. It is quite another thing to suggest that comp is the remedy for any wrong in any relationships.     “Mom always liked you best” is great comedy but shouldn’t be a cause of action against the Fund.

Agreement to leave medical open includes disputed TKR

A worker who settled a comp case with an agreement to leave medical open should go to comp to resolve any disputes instead of circuit court, according to a recent opinion from the court of appeals.  The court also sent a strong message to the carrier that its argument to deny future medical for a total knee replacement wasn’t going to fly when it agreed to leave medical open.    Pierce v. Zurich American Ins. Co., WD 77095 (9/9/2014 Mo Ct. App. 2014), 2014 MO App. Lexis 968.

The claimant in 2012 settled a worker’s compensation case.  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.  The parties agreed to leave medical open for a year after the settlement.  A month after settling the case claimant demanded treatment for a total knee replacement.  The carrier refused to authorize the requested treatment based on expert opinion that any TKR was not work related.
In May 2013 claimant sought specific performance for the carrier to tender care.  The circuit court dismissed the claim due to lack of jurisdiction.

The court agreed with the carrier that the circuit court properly dismissed the case based on lack of jurisdiction but dismissed it for the wrong reasons based of lack of subject matter jurisdiction when the real issue was primary jurisdiction as the Division should resolve the dispute first since the comp statute provided a remedy.    

Section 287.140.8 provides:
The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. The director of the division shall establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. The claim shall be reactivated only after the claimant can show good cause for the reactivation of this claim and the claim shall be made only for the payment of medical procedures involving life-threatening surgical procedures or if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device. For the purpose of this subsection, "life threatening" shall mean a situation or condition which, if not treated immediately, will likely result in the death of the injured worker.
Zurich argued that comp was the exclusive remedy even though it asserted based on these facts there was no statutory remedy under comp to reactivate a settled claim to obtain a total knee replacement unless one had been previously ordered.  Section 287.140 allowed re-activation of claims for prosthetic devices.   The court agreed that 287.140 provided a statutory remedy to address this request for a prosthetic, but found Zurich was wrong that the request in this case was not authorized by the reactivation provision.  Section 287.140 applied to replacement and new prosthetics whether they had been ordered prior to the settlement.

The meaning of this case is important to draft settlement agreements to clearly reflect the intent of the parties.  The agreement to leave medial open otherwise subjects the employer and carrier to liability for any medical related to the claimed body part and waives any prior defenses based on causation disputes.  The takeaway is that if the employer did not want to pay for a TKR it should have excluded those treatments within the settlement contract.   The carrier as a condition of the settlement language adopted 287.140 as part of the Division's standard settlement contract language and was stuck with it.   The court did not address the issue whether a settlement could waive 287.140 or limit requests under 287.140 within a certain time period. 
The court found no private remedy for fraudulently denying medical treatment by returning claimant to a doctor who previously disputed causation. 

Wednesday, August 27, 2014

Commission reverses finding of no accident and awards SIF total

The Commission  reverses a finding that claimant failed to prove disability from a new accident when the Fund offered no expert testimony that assessed no disability.     Gray v Jack Cooper Transport, 2014 MO WCLR Lexis 100 (Aug. 19, 2014).

Claimant had been under care for chronic back problems, he underwent a spinal fusion, he was placed on restrictions, and found at MMI in Oct. 2004 with the caveat that his back would flare up from time to time.  He resumed care with the same doctor after January 2005 event when he reported that his back flared up after loading vans at work, his x-rays identified no new conditions, and his treating physician did not apportion any disability to the 2005.

The ALJ concluded that claimant failed to establish he had an 2005 accident resulting in any new disability.  .  The ALJ found the initial determination of MMI before the 2005 accident was premature as claimant continued to receive further care after the 2005 accident which the doctor attributed to the earlier accident and fusion surgery. 

The Commission reversed and awarded total benefits against the Fund.  The Commission rejects the Fund's argument that because the treating physician  allocated all disability to the pre-accident condition that lead to an inference there was no disability from the 2005 event.   The Commission found more persuasive the conclusions of Dr. Poetz that claimant had a new lumbar strain and exascerbated his discogenic disease resulting in right leg symptoms. The Commission rates claimant with a 20% disability from the new accident (twice the rating Dr. Poetz provided or the lumbar condition) and awards lifetime benefits from the Fund for the 61 year old.

Claimant had prior medical conditions of 75% BAW based on the ALJ and discontinued work after heart surgery. 

ALJ  Kohner
Atty: Isbell
Experts:  Robson, Gonzalez, England
Treater:  Robson