Friday, December 19, 2014

Commission opens door for 'occupational' hernia

Missouri has a statute which defines when a hernia can be compensable as an accident.  This statute, however,  doesn't show legislative intent that a hernia can only be compensable as an accident and can also arise from an occupational disease based on a novel statutory interpretation by the Commission.  Sadic v Semco, 2014 Mo WCLR Lexis 138. (December 5, 2014).

Mo. Rev. Stat. § 287.195 (2005) provides: In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the division or the commission: (1) That there was an accident or unusual strain resulting in hernia; (2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed."

The issue in the case was whether a machine operator sustained a hernia in 2010 from accident or occupational disease.  He had worked for the employer for 8 years.  He recalls two instances in 2009 and 2010 when he exerted himself at work and felt groin pain.  He had a left inguinal hernia repair in 2010.  An expert for the employer indicated that exertion can enlarge the size of a hernia but it was like being pregnant and a person had a hernia or they did not and couldn't relate anything to a 2010 accident given the history of trauma and similar symptoms in 2009. 

The ALJ found no statutory basis for a hernia from occupational disease.  He found claimant failed to prove an accident in 2010 due to inconsistent medical records and incomplete medical evidence which predicated liability on an occupational disease and failed to show he did not have a prior hernia. 

The Commission affirmed a finding that claimant failed to prove accident.   It went one step further.  It finds "we believe employee probably sustained a hernia as a result of an accidental injury at work at some uncertain time in late 2009" and that the statute supports finding of day-to-day activities gradually producing a hernia because hernias were not expressly excluded as occupational disease in 287.020.  The commission found however the medical evidence was insufficient to show what activities his continuation and progression of symptoms. The Commission disregarded impeachment by inconsistent medical histories because claimant was a Bosnian immigrant and found he had limited English skills (reversing the ALJ who found his competency with verbal skills did not explain the inconsistencies).  Claimant did not receive benefits because he failed to convey enough details to his expert about his job duties. 

The defense was statutory and not causation as the employer's own expert conceded the separate events could cause a hernia or repeated events could increase the size of hernia.   The Commission dicta tells employers that  when the legislature said hernias were accidents it really meant to say hernias were not just accidents.  Hernias have always been a little harder to prove because under the traditional interpretation of the statute a worker actually had to remember at least some sort of accident.  This was never a terribly difficult burden for most people. The Commission now signals those days are over and the failure to remember an accident didn't bar an award of benefits.  Hernias, like backs, now only have to "get worse."

ALJ  Ottenad
Atty:  Niesen, Frayne
Experts: Musich, Pruett

Commission affirms credit for missed appointment

The claimant alleges he knew nothing about 3 appointments he missed for  IMEs scheduled over a 5 month period.  The Commission affirmed an award with reductions for $300 in costs for the missed appointments.  The employer ultimately secured medical opinion from a different expert.  Moore v Delmar Gardens, 2014 MO WCLR Lexis 139 (December 9, 2014).

The Commission in a companion case more than doubled the award from the same judge for a claim involving the back injury from lifting a patient.   Claimant had undergone a two level fusion about 3 years after the accident but the employer disputed causation.  The ALJ had relied upon an opinion from a neurosurgeon that the accident had caused a lumbar strain.  The Commission noted claimant's reports of "significant" back pain after the accident.  A therapist appeared questioned the accuracy of the symptoms noting claimant had failed 21 validity indicators. 

ALJ:  Landolt
Atty:  Robbins, Temme
Experts:  Meyers, Kitchens
Treater:  Poulus

LexisNexis honors blog

"Back for a second year on our Top Blogs list is “Mo. Workers’ Comp Alerts,” by St. Louis attorney, Martin Klug. The blog has a new, clean interface and has real “pop and pow.” A must-read by anyone interested in Missouri workers’ compensation law, attorneys, insurance adjusters, and risk managers from other states would do well to monitor this blog as well...."

It's a wonderful job -- not!

Claimant had a wonderful life up to the point that it wasn’t.  Business slumped.  He began to have suicide ideation with paranoid thoughts that people were taking his money.  He began to hear voices that no one else could hear that guided him into to an alternate reality.  Zuzu always said every time her daddy heard a bell he got his Seroquel.

Some jobs are wonderful and some are not.  Some people are square pegs in round jobs and should consider alternate careers.  The classic source to job stress is perception of   difficult bosses and difficult jobs.   The Missouri comp system basically has one answer to these issues: you get what you get and you don’t throw a fit.

This runs contrary to the general philosophy behind comp.  Comp is a no fault system.  In mental-mental claims there is this vestige of assumption of risk.   If your boss makes a Gordon Ramsay rant sound like a purring tuxedo cat, then you should just get out of the kitchen if you can’t stand the heat.  People in high stress jobs make “real” money so they should put up with “real” stress and deal with it.  This is contrary to approaches to most occupational disease.  No one in the coal mine business says to its retirees with terminal illnesses:  “We paid you a lot more than minimum wage jobs around here.  Stop being such a whiney sissy just because you have that meso-whatever.”   

The standard in Missouri is that stress claims are generally not compensable with the exception of stress that is extraordinary or unusual.  This has been the rule also to exhaustion claims unless there are truly  extraordinary hours.  Snowbarger v Tri-County Electric Cooperative, 793 S.W.2d 67 (MO 1990).   A separate rule applies when the mental claim arising from an assault   I.e.    Jones v Washington University, 239 S.W.3d 659 (Mo. App. 2007) (grabby patient);  P.M. v Metromedia Steakhouses, 931 S.W.2d 846 (Mo. App. 1996) (rape), Chuchian v TWA, 2003 MO WCLR lexis 117 (strangled by co-worker).    Exactly what slings and arrows of poor human resource management is extraordinary is left undefined and resolved on a case by case basis. 
The commission has provided some guide as to what is considered "ordinary:" stress:  invasion of personal space and offensive gestures;   Blair v St. Louis Community College, 2001 MO WCLR Lexis 25; criticism from supervisor,  Smith v Anheuser Busch Credit Union, 2004 MO WCLR lexis 77; dealing with "perfectionist" as a supervisor;   Russell v St. Louis Board of Education, 200 MO WCLR Lexis 16; Verbal reprimand, Burnett v Barnes Jewish Hospital 2000 Mo WCLR Lexis 9; politically incorrect jokes; Bray v G&K Services, 2009, MO WCLR Lexis 43; ethnically offensive pranks,  Session v the Boeing Company, 2011 MO WCLR lexis 187; Rayborn v Eagle Picher Industries, 1990 Mo WCLR Lexis 69; co-worker teasing  Webber v Chrysler , 1990 MO WCLR Lexis 72 (co-worker with bowel disorder teased as 'poopy Dan.')

Missouri  never intended worker’s comp as a remedy for every indiscretion, perceived injustice  because a worker just can’t get no satisfaction.  Comp is not a rule of etiquette.  There are few easy solutions to toxic people:  spritzing them with Neosporin just makes them bark rather than wag.    

Poor human resource management should not be disregarded as irrelevant to comp reserves because Mo comp law excuses "ordinary" stress.  Employment law has long recognized the toxic impact  of bad supervisors or high-stress demands.   This is often an indirect cost to orthopedic injuries.    This is classic fodder in cases when the medical injury is colored by every perceived wrong about the work place.  The Supreme Court seemed so impressed in Missouri’s recent case of Templemire v W&M Welding, No., SC 93132, 2014 Mo WCLR Lexis 111 that it lowered the standard for the claimant to pursue a retaliatory discharge claim.    The claimant in that case submitted evidence that he was criticized  that "[a]ll you do is sit on your ass and draw my money" and he was "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.”  There are too jury panels who have had Ebenezer bosses for employer-defendants to feel good that words can never hurt them. 

Every comp case that begins with a story that it’s not about the money and how a worker perceives he has been mistreated is not just another case of patch them up and send them out.  All the attention to ergonomics and safety isn’t worth a hill of beans by not controlling the risks of poor management.  When a worker gets up, goes to the window, sticks his head out and starts yelling he’s not going to take it anymore then it’s too late.  Nothing ever comes to no good on Bedford Halls Ridge.

Tuesday, December 16, 2014

Employer wrongfully stopped PTD benefits

The employer asked claimant to attend an IME after it had paid total disability benefits for a back injury for many years and unilaterally stopped benefits in 2014 when claimant did not attend the exam.  The Commission denied the employer a motion to compel claimant to attend an exam and found no statutory basis for the employer to unilaterally terminate benefits.  SSM Healthcare v Hartgrove, WD 77560 (Mo. App. 2014) (Dec. 16, 2014).

The court affirmed the commission's finding that the employer had no statutory authority to terminate benefits and the proper procedure was to file a motion to modify an existing award under 287.470 based on a change in condition.  The issue whether the employer remained entitled to further medical exam was apparently not presented to the court.  This presents a classic catch-22:  an employer can only request a termination or modification  with proof of a change in condition but can't prove a change of condition without compelling an exam. 

It is unclear from the opinion whether the employer after the award exercised its right to direct medical care and if any of the treating records in the past 10 years since claimant's finding of PTD for a back injury provided any indicating of a change in condition impacting a capacity to work.  The fact that the employer wanted to pursue an IME suggested the treating records may not have fully supported their position. 

The record does not indicate any attempts to enforce the judgment in another venue. 

Thursday, December 4, 2014

Dependent son receives total benefits after father's cocaine-related death

A dependent child was awarded PTD benefits for life and stepped in the shoes of his deceased father who died from unrelated causes about 8 years after a catastrophic work injury.  His father fell from a roof when he was 22 years old.  After extensive treatment for years, and confinement in life to mostly a wheelchair and bed,  his father was found dead in a Walmart parking lot  from acute intoxication with difluoroethane and cocaine.  The employer provided more than 2.2 million in care involving multiple spinal surgeries and psychiatric admissions for poly-substance abuse and self-inflicted wounds.  Agnew v Aalco, 2014 Mo WCLR Lexis 133 (Nov. 21, 2014).

Missouri's Schoemehl decision allowed a dependent to step into the shoes of a PTD worker when death occurred from unrelated causes.  That rule no longer applies for accidents after 2009 due to a legislative fix but this case was pending since 2000 (with subsequently amended claims). 
The case involves the 300-week defense (287.020) and Schoemehl.  Missouri has a rule that death benefits are unavailable more than 300 weeks after an accident under 287.020.  In this case, the death occurred more than 500 weeks later.  Although the commission found the statute precluded death benefits such as burial benefits, it did not preclude an award of PTD benefits under the Schoemehl case in which the dependent steps in the shoes of the deceased worker.  The ALJ ultimately concluded the death was not caused by the accident 

The commission refused to award requested legal fees asserting more than $42,000 for a frivolous defense.  The employer argued that claimant was not PTD and never at MMI due to his constant treatment, an opinion not fully supported by its own experts.   The claimant had failed to prove an after-acquired spouse was a dependent entitled to benefits.  The court in his denial of awarding sanctions noted both attorneys submitted proposals that were "unusually" well written. 

ALJ:  Kohner
Atty:  Stenger, AIG
Experts:  Pelikan, Lalk, Wolfgram, Abram
Treaters:  Lenke, Cantrell, Coyle, Abram, Field, Juknis, Anderson

Monday, November 17, 2014

Welcome, sulfur dioxide; Hello Carbon Monoxide....

It was something in the air that killed him, and more likely than not it was Brazilian air, concludes the Commission in an award of death benefits to a business traveler who became ill quickly after returning to Illinois after interview job candidates.  Omron Electronics v The Illinois Workers Compensation Commission, 2014 Ill App. 130766WC (Nov. 14, 2014).

After a short trip to Brazil of about 36 hours, the worker returned to Illinois with flu-like symptoms and then developed purplish spots over his body.  A few days later he died from Neisseria bacterial meningitis. (meningococcemia)

It was something in the air.  Brazil might be known for many wonderful things, but  the experts agreed Brazil had 3-6x the incident rate of meningitis.  The incubation rate of 2 days was consistent with claimant's worsening condition, even though he had some respiratory symptoms before the trip and  incubation could take a lot longer.  The case is a prime example of applying increased risk to a point of absurdity. 

The employer objected there was insufficient evidence to award benefits and  no evidence of a specific exposure from a specific person or even a history of high-risk exposures such as contact in crowds.  Illinois does not require proof of the etiology of the disease from direct connection, it requires only a causal connection.  The deceased could have had exposure to  one bad droplet anywhere:  airports, cabs, offices. Just because he could have met 99,995 Brazilians who didn't have the disease, it didn't mean he couldn't have met  the 2-5 persons in 100,000 who might have had it.

The Commission awarded the special administrator death benefits, burial  expenses, and reasonable and necessary medical expenses in the amount of $10,359.69.