Wednesday, November 25, 2015

Conclusory expert opinion does not support an award

The commission affirmed a denial of benefits for a new repetitive trauma shoulder injury for a worker with a history of 2 prior shoulder surgeries and chronic pain from degenerative joint disease.  Brown v Wal-mart, 2015 Mo WCLR Lexis 108 (Nov. 20, 2015)

The ALJ found that both the claimant and his expert were not credible and found the store manager more credible about the nature of claimant's job duties.  Claimant performed primarily a non-repetitive job of customer service.  The ALJ found any ongoing need for treatment flowed from prior conditions.

The Commission finds claimant's medical expert unpersuasive because his report did not state what claimant did and what new medical conditions those actions caused.  "We would expect from employee's evaluating expert an explanation of the cumulative trauma employee sustained, as well as a specific identification of the new pathology that employee purportedly suffered as a result of this cumulative trauma."  The expert failed to distinguish what was new compared to the prior condition.  His opinion was not "relevant" to the extent he does not acknowledge a change in claimant's job activities to less repetitive duties.

The Commission provide a separate opinion that found claimant credible and what he did and that his duties produced symptoms but noted that otherwise "persuasive" testimony from his expert failed to identify a new medical condition and the basis for showing how it was caused by his duties.  "The problem with employee's case is not that he lacks credibility with regard to what percentage of his work involves stocking shelves, it's that employee's evaluating expert failed to identify a "resulting medical condition" for purposes of § 287.067."

ALJ:  Mahon
Atty:  Ryan Murphy, Catherine Goodnight
Experts:  Paul, Lennard

Tuesday, November 24, 2015

PTD for woman stuck in employer's elevator

 The Commission unanimously affirmed an award of total benefits for a 61 year old woman  who alleged she caught PTSD after being stuck in an elevator. Conlan v Southwestern Bell, 2015 MO WCLR Lexis 105 (Nov. 20, 2015)

The ALJ  found that claimant's PTSD flowed from her accident and that vocational restrictions from the PTSD prevented her from ever working again. 

She sustained physical injuries to the head, neck and wrist. 

Her primary physician, Dr. Taylor, suggested she had PTSD and referred her to psychology.  She treated with a psychologist who felt she lacked the "mental condition" to be able to work.

Dr. Volarich, claimant's expert, identified various medical restrictions but deferred to mental health experts any opinion related to any psychiatric injury.

Dr. Halfaker, a psychologist, concludes she exacerbated a panic disorder, that she "produces symptoms" in response to stress, and she mistakenly believes she has a concussion.  He finds that being trapped was a "significant" stressor to constitute PTSD based on DSM-4.  The physical injuries involved a neck "syndrome" and a suspected TFCC tear in the wrist.  The ALJ discusses the MMPI results showing a somatic and depressive behavior.  There is no mention the MMPI actually supports a diagnosis of PTSD.

Dr. Jarvis, the employer's psychiatric expert,  found no basis to diagnose PTSD and notes claimant has panic disorder triggered by  multiple sources such as crowds, stores, restaurants, chickens and cows.   He stated the elevator episode her panic disorder associated further with  agoraphobic.

The ALJ found claimant temporarily disabled for 120 weeks.  The employer did not defend the reasonableness of treatment.  The claimant has some cognitive behavior therapy but the award does not otherwise document the course of treatment or the specific restrictions from her mental condition.

The employer asserted a legal defense. 

Claimant had arrived early at work, entered the employer's premises, and went into an elevator to go from the 1st to the 5th floor. The employer argued that the  injury did not flow from a work-related risk, from performing her integral duties, or that she sustained injuries during her shift.

The ALJ rejected each contention.  The claimant's use of the elevator was an "integral" risk associated with the employer's building and that her activity fell within the extended premises doctrine.  She had worked for several years as a customer service rep.  Claimant entered an elevator on the employer's premises which dropped a floor and trapped her for an hour. The ALJ noted claimant's employment placed claimant in an unsafe condition.

The case is another one of those cases in which PTSD is tossed around as a diagnosis without a lot of close scrutiny of the diagnosis itself or whether forensic tests really supported the diagnosis.  This is a 9 year old injury in which experts relied upon  DSM-4.  The ALJ relied upon vocational opinion to conclude the claimant was unemployable based on her GAF score, which were used in DSM-4.   The use of GAF scores have been later repudiated as unreliable when APA adopted DSM-5 several years ago.

ALJ Wilson
Atty:  Newman, Lockhart
Experts:  Swearingin, Halfaker, Jarvis, England, Volarich , Fevurly, Lennard

Atty wins $700K in medical bills on 'modified' award

The claimant hurt his back in 2011 moving a 100-pound bag of sugar onto a pallet.  The commission modified a finding that claimant not only strained his back but hurt his prior degenerative spine and trumped the award more than $700,000.   Valdez v Gilster Mary Lee, 2015 MO WCLR Lexis 110 (Nov. 20, 2015).

The ALJ rejected the claim of  $701,892 in medical treatment for an alleged multi-level disc injury and found claimant failed to prove causation.  Claimant's medical records shortly after the accident contain a history that his symptoms had resolved, that he had a normal exam and he denied he was in pain on a July 1 visit.  On an August 24 visit claimant asserted an acute worsening of symptoms in the past week or two.  Claimant had pre-existing degenerative disc disease and ultimately underwent a three-level surgery in December 2011. 

Dr. Chabot, an orthopedist,  examined claimant in 2011 and found no active radiculopathy and concluded the spinal condition was primary degenerative.  Dr. Poetz, a family practice doctor, testified an acute onset of pain was best explained by a traumatic herniation than a gradual degenerative process.  He rated with a 45% disability.  Dr. Chabot provided no rating and the case was defended on medical causation.   Claimant testified that following surgery  he still has daily back pain which affects ADLs, he is taking 5 medications without significant relief, and treating at a pain clinic and wants to have RF surgery.

The Commission reversed the denial based on medical causation and modified the award. The Commission found the accident caused "at least" a herniation at L5-S1 based on Dr. Poetz' opinion that acute pain in the back and leg represented a disc herniation.  The commission identified no prior medical treatment and no subsequent intervening accident. Claimant acknowledges he minimized his symptoms to get back to work.  The employer contends he lied.

"We cannot adopt employer's rather hyperbolic characterization of employee as someone "unwilling to speak the truth." Rather, as employee forthrightly admits, he minimized his symptoms   when he saw Dr. Womack in July 2011 because he was eager to get back to work in order to provide for his family. We find that employee wanted to get back to work and simply overestimated his ability to return to his normal daily work duties..."

The commission awarded $759,779 in benefits plus open medical.  About 92% of the award was for medical bills.  The case was tried in December 2014.  Claimant resumed work as modified duty and sought permanent partial rather than permanent total benefits. 

  The Commission concluded claimant had a progressive condition because the first studies showed "bulges" and the later studies showed "herniations." No expert compared the studies to explain if there was a difference in findings or merely a difference in vocabulary. 

The employer offered no evidence to contest the reasonableness of the charges. 

Dr. Fonn, claimant's surgeon, was indicted in September 2014.  The federal prosecution remains pending.  1:14-cr-00089-SNLJ-ACL.

The case is important in several respects.   It highlights the massive liability a Missouri employer can face in worker's compensation cases where the evidentiary rules are relaxed to avoid easy access to benefits in exchange for reducing unpredictable exposure of a tort recovery.    This is compounded further by shifting medical risk for degenerative spinal conditions into the comp system.  It is unclear how a case involving a partial disability gets to $700,000 in medical bills and may speak a lot to problems of business operating in a state that has not adopted its own medical fee schedule.  This becomes even more dangerous environment for employers when  misrepresentations are blithely disregarded if they get in the way of accessing benefits.

ALJ  Tilley
Atty:  Elfrink, Remley
Expert:  Torentino, Poetz
Treater:  Dr. Fonn

Thursday, November 19, 2015

Court finds 3 year statute when TX employer doesn't file first report

In Small v Red Simpson, WD 78289 (Mo. App. 2015) the court of appeals on Nov. 17 reversed a denial of benefits under 287.430 which found a claim filed in 2009, 14 years after an injury, to be untimely.

Small had an accident in 1995.  He settled the case involving an accident in Texas.  In 2009 he filed a claim, about 9 years after settling the Texas case.  The employer never ceased making payments for three years or longer.  Claimant decided to pursue benefits in Missouri on the 1995 case after he hired an attorney to represent him on a new accident.  Claimant was out of work for about 2 years as a result of an electrical trauma. 

The Commission found he was entitled to worker's comp benefits in Missouri and that payments received were made under the comp chapter on account of the injury but found the claim itself untimely because more than 2 years had passed between the last payment and the claim. 

The court found interpretation of 287.380.1 as a matter of first impression to decide whether the phrase "in this state" imposed a different scheme for the statute of limitations for employers in the state and employers outside the state that were subject to Mo comp jurisdiction. 

Section 287.380 provides:

 Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within thirty days after knowledge of the injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death

The employer argued that the shorter 2 year statute applied because it was not an employer present in Missouri.  The court construed 287.380.1 and found no distinction in applying the statute to employers in state or out of state and that a timely report of injury  triggered the 2 year statute and the lack of filing a report of injury triggered the longer 3 year statute.

 Under pre-reform liberal construction,  the court found the commission misapplied the law in its construction of 287.380 and 287.430 to create a different rule for out of state employers.

The court found that a contract of employment was made by telephone when claimant lived in Missouri. The court further found payments made under "this" chapter even if they were paid to satisfy Texas worker's compensation law or a compromise settlement or for ongoing treatment. 

 The court found no distinction  in  definition of "employer"  in 287.430.   and applied the same limitations under 287.380.1  whether an employer operated in Missouri or not. 

Under liberal construction, this potentially allows "more time" for an employee to access Missouri's worker's compensation system when out of state employers more likely never file a report of injury. The court notes that an out of state employer's failure to file would not be subject to prosecution for failing to file a report. 

Commission finds conversion disorder flows from carpal tunnel

The commission affirmed an award of permanent and total disability benefits to a 38-year old woman who she states after a carpal tunnel surgery she was unable to use her arms or legs.  Law-Clark  v McCleod, 2015 Mo WCLR Lexis 105 (Nov. 6, 2015).

Shortly after she had carpal tunnel surgery, she began to describe bizarre symptoms with her hands clenching.  Over the course of several years, her symptoms became worse  and spread to both legs.  She claims she requires a power-driven wheel chair, she cannot walk and she has difficulty cutting her own food and needs home nursing 6 hours a day.
 A pain specialist who performed a series of spinal blocks for “migratory” RSD and he implanted  a spinal cord stimulator.  The doctor conceded some of the clinical findings did not support a diagnosis of RSD.

“She is mired in the diagnosis of CRPS/RSD” and has had “an incredibly long history of relatively unsuccessful treatment based on what may have been a misdiagnosis, ” according to ALJ Mahon.   The ALJ found her contention that she had RSD was not persuasive and inconsistent with multiple medical experts.  

The employer relied upon an expert who has “extraordinary expertise” that claimant’s symptoms flowed from a conversion disorder.  The expert concluded the condition  was not substantially caused by the accident and was related to a personality defect.  Claimant assiduously denied psychological factors caused any of her symptoms.   A psychologist noted that claimant's family "appears to respond to the pain in a solicitous manner" and Claimant's pain problem appears to be "affected by psychosocial factors that could be addressed with psychological intervention.”  Claimant’s own expert agreed she had a conversion disorder.  
The ALJ concluded that her  conversion disorder flows from stress and that since the symptoms came after her surgery then surgery was the "obvious"  cause of stress.  The commission affirmed the award for total disability and open medical to treat  her conversion disorder and major depressive disorder.  The ALJ denied benefits for the alleged RSD. Claimant denied she had other stressors in the past. The ALJ found she was found to be an unreliable witness.

The employer offered no vocational opinion to contest the finding that she was unemployable.  Claimant asserted that she was unsuccessful at an internet-based business.  The ALJ denied an award for home nursing services which was based on non-expert opinion.   Claimant performed data entry for the employer.  The ALJ notes that after high school the claimant studied psychology.

ALJ Mahon
Atty Wise
Experts:  Dr. Paul, Dr. Feinberg, Ziaee, Inniss
Treaters:  Lampert, Wallender , Joseph, Toby, Feldman, Grillot, Crockett, Geter

SIF liable for pre-accident hearing loss.

Claimant sought benefits from the Second Injury Fund  for pre-accident hearing loss.  Horton v Fulton State Hospital, 2015 MO WCLR Lexis 104 (Nov. 6, 2015).

Claimant stated he couldn't hear without hearing aids.  He was seen both by Dr. Cohen and Dr. Mason.  He previously worked at Fulton State Hospital.  He had a binaural hearing loss of nearly 35% (based on 180 weeks).  The Fund offered no medical evidence to contest these findings. 

ALJ Zerrer found that claimant had a 15.5% BAW hearing loss.  He ordered the Fund to pay about $4200.

The Fund, instead of paying the award, appealed and alleged that hearing loss cannot be described as BAW because it is a scheduled injury.  The Commission described the argument as patently illogical and noted the Supreme Court rejected a similar appeal before reform.  The court found no statutory intent to abrogate the prior case  Pierson v. Treasurer of Mo. as Custodian of the Second Injury Fund, 126 S.W.3d 386 (Mo. 2004).

A, Ahrens

Saturday, November 14, 2015

Urine -- the money!

Another new cost driver now in comp is drug tests. Not many years ago most urine tests were performed by only a few labs. Doctors now have acquired their own testing equipment and perform many tests on their own.  This makes urine another stream of self-referral revenue like owning part of an MRI machine.

Urine testing is an objective test to measure compliance with drug treatment plans such as "drug use contracts." The failure to use drugs correctly is one of many explanations of poor outcomes in the workers comp cases. Research shows that often prescribed drugs are not found on a test or drugs from other sources appear in the test results.  Best practices encourage these anomalies to be a point of discussion.    Sometimes the inconsistencies have benign explanations and sometimes they do not.  In some cases people who "fail' such tests are booted from clinics back to their family doctors to clean up messes and patients may find themselves without any more regular disability checks.

Such results may be an early warning sign to add to the 175,000 people since 1999 who had died from overdose.  Sometimes misuse is the sign of underlying psychiatric issues flowing from disparate things like adverse childhood experience.  Sometimes it is a sign of metabolic differences between patients.  Sometimes it is fraud.  Their is an emerging underground market to sell "extra" pills to beat pan clinics who want to count patient's pills to see if they are following directions.   Sometimes it it a patient who doesn't understand the basics:  like what is p r n.

Missouri allows drug testing as a front line defense to promote a drug free work place and limit benefits for injured workers who violate such policies.  This is in contrast to some states which ban such testing or defenses.  Post-accident drug testing  may conflict with generally accepted occupational disability guidelines to prohibit testing in acute settings when acute treatment requires opioids.  This creates the problem of flagging "okay drugs or deterring patients to seek acute care who are nervous about "dirty' results.  Tests may also flag chronic marijuana use which may violate a company policy but may  not establish acute use as a cause of the accident.

Drug testing as a regular "vital sign"  at each visit is more akin to another form of  "defensive medicine" of excessive diagnostic tests at emergency rooms.    The biggest tool to stop the "drug problem" is  to implement a state prescription drug monitoring program.  The routine access to such a resource has become a standard of care in many states.  Missouri's comp statute does not require it, and Missouri  is the only state in the entire county which has failed to adopt such a program.  The only explanation at the convention is that Missouri politicians are afraid of Big Brother.   It is a sad reflection at the national comp convention that many Missouri employers try to promote a drug-free work place and the state becomes a poster child of "don't be like him."