Monday, March 19, 2018

Employee awarded benefits for escaping from work

Claimant injured his ankle after his shift when he was inadvertently locked in the employer's courtyard.

The Commission found claimant exposed to a work hazard or risk which arose his employment, and rejected the employer's defense that claimant should not have been in the court yard in the first place, that his  accident of climbing down was not directly related to his job and that claimant should have called for help rather than trying to escape on his own. 

The commission disavowed the ALJ's reliance on pre-reform case law to interpret arising out of and criticized the a parties who mischaracterized the legal dispute as an accident arising out of employment when the core dispute was whether an injury arose out of employment. 

The ALJ award 25% for an ankle injury, and gave found a rating deemed a "disability" rating to be more persuasive than one using an 'impairment" rating.  Brown v Superior Linen  Supply Company   March 7, 2018

ALJ  Fowler
Atty:  Mayer, Collins
Experts:  Prostic, Pratt

Thursday, March 8, 2018

Commission takes away PTD award and modifies credibility finding

The Commission modifies an award from permanent total to permanent partial for a strain based on credibility that claimant did not credibly explain or discount impeachment by inconsistent statements and prior treating records.   Farris v ADS Waste Holding, 2018 MO WCLR LEXIS ___ (March 7, 2018).

Claimant alleges injuries from lifting and driving on bumpy roads and a specific event in January 2014 when he was thrown up in his seat after he hit something in the road.    Claimant was diagnosed with an acute thoracic herniation. 

Dr, Stuckmeyer testified that claimant had disability to his neck, back and hip.  Dr. Rende provided different medical opinions about causation. The ALJ relied upon vocational opinion that claimant was unemployable because he could not work 40 hours a week.

The ALJ makes several comments that defense experts had incomplete records and had not been provided various films, records or transcripts.  The ALJ noted that the employer did not offer a vocational expert.    The ALJ questioned the lack of evidence to show an engineer's qualifications

The ALJ notes calling an ambulance established actual notice of a work-injury. 

The Commission noted that claimant abandoned any claim of occupational disease and affirmed a finding of accident of hitting a bump on the road on a specific date. 

"We take this opportunity to remind the parties as to the critical importance of obtaining a statement on the record of the particular issues in dispute that is not only complete, but precise in terms of the various statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal."

"To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed a third question that was not expressly identified for trial. This is troubling because the courts have very recently cautioned the fact-finder against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional evidentiary proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing before the administrative law judge, but instead disputed the more general issue whether the employee suffered an injury that arose out of and in the course of employment.

Here, the parties do not now ask us, in their briefs or at oral argument, to consider or apply the aforementioned statutory provisions referable to whether employee sustained an "accident" and/or an "injury arising out of and in the course of the employment." Instead, employer complains that the administrative law judge failed to identify, with sufficient specificity, the nature of the "resulting medical conditions" she deemed to have resulted from employee’s accident. In other words, employer asks us to go forward with the issue of medical causation, even though such was not identified as an issue at trial."

The commission noted years of chiropractic treatment leading up to the accident which mirror symptoms claimant attributes solely to the accident of hitting a bump.  The court noted numerous inconsistencies regarding the prior history, accident, and extent of subsequent symptoms in records and media account to not defer to the finding of credibility by the ALJ. 

ALJ Fowler
Atty:  McKay
Experts:  Stuckmeyer, Drieling, Clymer, Rende, Katz

Friday, March 2, 2018

Court affirms PTD for compression fracture

Jackson County Mo v Marc Earnest
WD 81803   Feb. 27, 2018

Employer appeals an award of permanent total affirmed by the Commission. 

The court of appeals defers to findings of fact whether a person is employable in the open labor market, unless such finding is against the overwhelming weight of the evidence.

The court found the commission had not committed error by relying upon a decision that was over-ruled on an issue of law that was not in dispute. 

The court commented in a footnote that it was "interesting" that the employer relied upon cases that were similarly over-ruled in its argument. 

The court noted the commission had based its finding on the totality of the evidence, including doctor's opinions, and found its award supported despite inconsistencies in some of claimant's testimony involving topics such as the capacity to perform certain physical tasks. 

The ALJ found video tape not persuasive on the issue if claimant was employable based on a "snapshot" in time, despite inconsistencies in his testimony and the physical activities demonstrated  of cutting the grass.

The facts of the case involved a 2014 accident when a tree fell on an employee resulting in a compression fracture.  Claimant stated he had severe limits in his ability to stand, sit, and other activities due to his surgeries.

"Due to believed fracture instability, Claimant was admitted to the hospital from April 1 to April 13 to undergo two surgeries. The surgeries included rib resection for bone grafting, partial removal of the T7 vertebra, and hardware placement for anterior and posterior spinal fusions. After the surgeries, Claimant was released from the hospital but continued to follow up with his surgeon, Dr. Wilkinson, often complaining of back pain and muscle spasms."

Experts:  Stuckmeyer
Judge Ardini

Wednesday, February 28, 2018

Noxious dust exposure renders claimant unemployable

The commission affirmed an award of permanent and total disability benefits to a 50-year old state employee who worked as a janitor and cleaned up around an asbestos abatement work site for about 3 months.  Claimant assets the employer provided no safety protection when he mopped the area and dumped trashcans containing noxious white powder.  Cooper v Mid Missouri Mental Health, 2018 MO WCLR Lexis ___ (2/23/2018)

On appeal, the Commission affirmed an award of PTD, open medical, past medical bills of $232,627 but reversed a 15% safety penalty based on lack of expert opinion to show specific terms within the safety penalty of 292.300 which provides:

§292.300 RSMo:
Employer to provide protection to employees from diseases.
That every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process. (Emphasis ours.)

"We find that claimant’s hypersensitivity pneumonitis was caused by conditions in the
employer’s workplace and exposure occurred relative to employee’s work duties. However, there is an absence of evidence demonstrating the existence of approved and effective devices, means or methods for the prevention of employee’s injury; nor is there evidence demonstrating employer’s failure to provide such caused employee’s injury. Therefore, we are not prepared to conclude if employer had provided a device, means or methods (as required by the statute), then the occupational disease could have been prevented....Employee has not proven that an approved and effective device, means or method existed fro the prevention of such occupational exposure.  .... Employee has not proven that an approved and effective device, means or method existed for the prevention of such occupational disease...."
Dr. Parmet, the claimant's expert, asserted that claimant developed hypersensitive pneumonitis from dust exposure and particles and suspected claimant may have also developed sarcoidosis from exposure.  Claimant developed progressive weakness and could not tolerate sedentary work without extensive accommodation.  His condition was originally identified as only an eye problem.  Claimant developed a variety of other medical conditions secondary to use of prednisone, including the ultimate need for a total hip replacement.
The ALJ found claimant developed diabetic neuropathy and needed a hip replacement because of medication used for the pneumonitis.  The ALJ found insufficient medical proof that claimant's sacroidosis flowed from the exposure, not did he find  lymphoma or consequences of using mediation for sacroidosis to be work related. 

The employer denied liability from the onset and defended the case based on expert opinion from Dr. Graham and Dr. Jacobs who found claimant's condition arose from non-occupational sarcoidosis.  The ALJ ultimately found claimant's expert, Dr. Parmet, as more credible. 

"On the issue as to whether Claimant’s interstitial lung disease is hypersensitivity pneumonitis or sarcoidosis, I find Dr. Parmet’s opinion to be more credible and persuasive than those of Dr. Graham or Dr. Jacobs. First of all, Dr. Parmet’s opinion was made upon the examination of all the evidence. Second, Dr. Parmet’s opinions are consistent with the laboratory results. Third, Dr. Parmet’s opinion is consistent with the chronology of the case. While correlation is not causation, Claimant’s lung symptoms did correspond temporally to significant dust exposure. The lung symptoms were not initially accompanied by any other symptoms related to sarcoidosis, and in February 2008 hypersensitivity pneumonitis was diagnosed, and Claimant was treated with prednisone (which is the proper treatment for hypersensitivity pneumonitis and is also the proper treatment for sarcoidosis), and Claimant’s lung symptoms responded positively to the prednisone. It was not until September 2010 (two and a half years later) after evidence of sarcoidosis was found in other body systems, that Dr. Sohal "changed" Claimant’s lung diagnosis to sarcoidosis."

The ALJ accepted the only vocational opinion that claimant was unemployable in the open labor market. 

The ALJ noted Dr. Parmet could not state with a reasonable degree of medical certainty that claimant's sarcoidosis arose from the exposure nor did he provide any testimony that claimant's depression flowed from his accident.

The ALJ noted that the condition involved complicated medical issues that had changing diagnoses in the courses of claimant's care.  The commission affirmed the denial of attorney's fees for unreasonable defense although the employer did not prevail.

The 35-page opinion by ALJ Dierkes is a excellent primer describing the court's treatment of similar cases such as Vickers v. Department of Public Safety, 283 S.W.3d 287 (Mo. App. 2009), Smith v Capital Region Medical Center, 412 S.W.3d 252 (Mo. App. 2013) and Lankford v Newton County, 2017 MO WCLR LEXIS  2019, decision without published opinion 2017 MO Lexis 138  (Jan. 17, 2017).

ALJ  Dierkes
Atty Rotts, Ahrenbach, Dunkham, Hinson
Treater:  Guntur, Wen
Experts:  Parmet, Kibby, Weimholt, Graham, Jacobs

Monday, February 26, 2018

Commission affirms SIF total back on back

The 2-0 commission affirmed an award of total SIF benefits to a 52 year old man with a series of 3 back injuries.  Johnson v RBJ Investors, 2018 MO WCLR LEXIS (DOLIR 2/23/2018)

Claimant reported he had back pain before the primary injury and used narcotic medication on occasion and a brace to treat a foot drop following surgery for a prior herniated disc.  Claimant asserts after his last accident his pain is "much worse", that he uses medications more frequently and must lie down to alleviate his symptoms.

The ALJ noted claimant had an identifiable accident from carrying firewood that caused "great pain."
He asserted prior to the accident he worked "up to" 70 hours a week.   The expert for the claimant attributed partial disability to the last accident alone.  The fund apparently offered no expert opinion to challenge the testimony in the 2013 case. 

ALJ:  Fowler
Atty:  Martin, Fournier
Treaters:  Dr. Clough
Experts:  Dr. Stuckmeyer, Direling

Thursday, February 1, 2018

Hip replacement re-do not caused by strain

Koch v Aldi
Jan 31, 2018    2018 MO WCLR LEXIS ----
ALJ Hart
Atty:  Cox, Barnett, Toepke
Experts: Lux

The Commission affirmed a denial of past medical bills of more than $51,000  to a claimant who fell in 2013, strained her hip, and claimed new symptoms required her to have new surgery to revise a prior hip replacement.

Claimant failed to prove the need for new hip surgery flowed from her accident based on equivocal testimony.  Dr. Lux initially stated it was unrelated and then stated the need for surgery was related based on a medical history that claimant was asymptomatic and developed intense pain after the accident.  Dr. Volarich testified the claimant remained symptomatic and missed work as the prior replacement due to wear and tear (osteolysis)  Claimant had a prior right hip replacement in 1990, a revision of the prior hip in 1996 for a failed replacement, and she returned to her former surgeon, Dr. Lux, following the 2013 accident, 17 years later.  

The ALJ awarded 15% for a hip strain and denied future medical. The Commission affirmed an award of  total disability against the second injury fund.

"She credibly testified these injuries were a hindrance or obstacle to her employment in that they limited her ability to lift, kneel, and grip. Her strength was reduced and she needed assistance from co-workers. She limped at times and had swelling in her left ankle. She had low back pain and stiffness that limited her ability to sit or stand very long."

The commission stated it deferred to the ALJ's findings on credibility, despite some inconsistencies, but noted it was not legally compelled to follow such a determination.  The commission further noted it considered issues of both causation and nature and extent, although it noted argument in the appeal was broader than the issue on the application for review. 

Wednesday, January 31, 2018

ALJ awards total for burst fracture with intractable pain

The Commission affirms a PTD  award without a separate opinion.

Claimant alleges in 2011 she fell backwards and hurt her back when she was engaged in defensive tactics training.  Claimant alleged PTD benefits against the employer or SIF. 

She was diagnosed with a L2 burst fracture.  She retired from her job in 2013.  She had previously orthopedic treatment for her low back leading up to 2008.  She reports new intolerance to sitting and she must take naps regularly during the day. 

Dr. Volarich testified claimant was totally disabled from the last accident alone due to the severity of symptoms and she required future medical.  Claimant's vocational expert indicated that restrictions suggested by Dr. Volarich precluded her from sedentary work.

Dr. Coyle assigned partial disability and did not identify the need for future medical treatment.

The ALJ awarded total disability against the employer and found claimant's reports of severe pain when she attempted to return to work as evidence that she could not compete in the open labor market. 

Connie Carty v Southeast Missouri Health
2018 MO WCLR LEXIS   (1/18/2018)
Atty:  Seufert, Harris, Kincade
Experts: Volarich, Gonzalez; Coyle, England
ALJ  Tilley