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. 

Wednesday, May 2, 2018

Commission awards nearly $300,000 in benefits after treating doctor finds MMI

Elford Crafton  v UPS Freight
2018 MO WCLR LEXIS ___
May 2, 2018

Claimant had a 2011 motor vehicle accident and he was released with a 3% rating.  A surgeon concluded his condition was MMI.  Claimant sought additional treatment on his own for a 2-level lumbar fusion and the Commission affirms an award of medical and PPD.

The Commission noted the employer tendered a second opinion of Dr. Coyle, who found that claimant was not a surgical candidate, the spinal condition was degenerative and was not related to the auto accident, and he needed to lose 75 pounds.  The Commission noted there was no binding agreement that the parties would be bound by Dr. Coyle's conclusion as a tie-breaker, and the claimant could proceed on his own with treatment, resulting in an award of more than $240,000 in medical  and 30% PPD.  The Commission found  insufficient evidence to award all the TTD claimed because the length of the employment was not firmly established and testimony of pain was too speculative to affirm the TTD award  The commission noted the claimant had understated the amount of medical due by about $2,000 and awarded the higher amount.

The commission noted the attorney who tried the case asked the ALJ to award the fee to other plaintiff counsel. 

ALJ:  Carlisle
Atty: Walkenhorst, Morgan, Neumeyer,
Treater:  Robson
Experts: Woiteshek, Chabot, Coyle

Commission finds causation although expert "could have been more thorough"

Barnett v Harley Davidson
May 1, 2018
2018 MO WCLR LEXIS  ___

The  Commission affirms an award of 25%  for disability benefits from repetitive overhead trauma and treatment related to a herniated cervical disc.

The Commission relies upon an expert who it concludes "could have been more thorough" but found sufficient evidence to adduce prevailing factor even the absence of articulating that conclusion with the "magic" statutory words and relied upon treating records which did not clearly document a work onset.  The court noted that proof of repetitive trauma required expert testimony, but there was enough expert opinion to reach a conclusion.  The commission suggested Dr. Bailey, the defense expert, over-relied on a written job description.  Claimant performed overhead work with his hands as an assembler and stated he had to keep his neck in an awkward position. 

The Commission rejected the alleged error that the ALJ failed to credit an offset for PTO benefits when the issue was not preserved at hearing and the application for review raised the issue but failed to articulate the time period which was being asserted. The employer did not show specific payment figures and testimony that claimant received "around $300" was insufficient to show a credit or to show an exception to 287.270. 

The Commission considered the merits of the brief but noted the application did not comply with state rules because it was argumentative and not a fair and concise statement of facts "without argument."

The award represented about $47,000. 

ALJ  Pottenger
Atty:  Spooner, Billam
Experts:  Bailey,  Hopkins

Tuesday, May 1, 2018

No reversible error by failure to plead specific diagnosis

The commission affirms an award for a right wrist injury after a "pop" based on the rating  for a wrist fracture of the claimant's expert and an offset to short term disability benefits paid by the employer. Thomas Penning v Harley Davidson, April 25, 2018  DOLIR  2018  MOWCLR LEXIS __

Claimant was doing assembly work in 2013 and was treated for carpal tunnel and scaphoid fracture and underwent a carpal tunnel release and fusion to the wrist.  He was rated with a 35% disability by his own expert for the fusion..  Dr. Guinn testified the accident caused the fracture.  The ALJ found Dr. Toby's opinions disputing causation about the fracture was based on an inaccurate history.  The employer offered no evidence to dispute the disability opinions of Dr. Poppa who rated 35% for the fusion and 25% for the carpal tunnel.  The ALJ awarded open medical for the fracture, noting a "prn" release, but did not award open medical for carpal tunnel based on the testimony that claimant may require further testing.

The Commission noted a sudden onset of symptoms was consistent to support a medical opinion that accident caused a fracture or destabilized a previously asymptomatic fracture and either scenario supported proof of a change in pathology which caused a need for treatment.  The Commission notes a finding in a radiology report that a fracture was "healing" to infer an acute onset. 

The Commission rejected the defense argument that claimant was procedurally barred from pursing benefits for carpal tunnel because he did not plead a carpal tunnel injury.   The Commission further noted no basis in the regulations for the defense to object to the submission of a proposed award.  There was no error alleged regarding the award of temporary total and future medical.

ALJ  Heffner, Billam
Atty:  Perkins
Experts:  Poppa, Guin
Treater Bagby

Friday, April 27, 2018

Court denies reduction for alleged safety violation in a catastrophic truck injury

Amie Elsworth v Wayne County Mo (Mo Association of Counties)
No. SD 34919  2018 MO APP LEXIS 421 (April 24, 2018)

The employer appeals an award of PTD and alleges the commission erred when it failed to allow a reduction in benefits due to an alleged safety penalty for speeding and failure to wear a seat belt.   The Court affirms. The employer sought a reduction of benefits for an 18-year old involved in a catastrophic truck accident that put him in a permanent vegetative state. 

The employer asserted it warned claimant to obey traffic laws and wear a seat belt.  The employer argues that claimant did not follow the rules because he was speeding and did not wear a seat belt.  The Commission affirmed the  award of ALJ Robbins which denied  the safety penalty.  The employer asserted various negligent acts. 

The court noted the employee received on the job training without evidence of the specificity as to what training was provided or received.  The commission in the past had considered the efforts of employers to distribute written safety materials, schedule and present training seminars,  warning employees with disciplinary actions, testing to be sure that employees understand the rules and if previous violations have gone unpunished.  The section does not require a safety  rule to be written. The Commission was free to disbelieve the employer concerning the scope of its safety rules and enforcement.

An accident reconstruction expert testified that the employer failed to adequately train the driver. He had obtained a commercial driver's instruction permit only two weeks before his first day n the job. 

The case involves a 2007 accident.   At the time of the original hearing, the employer  had paid more than 2.5 million in  past medical benefits.