Thursday, February 4, 2016

Enforcement of settlement stalls due to insuffient record

In Bryant v Anderson, SD 33586 (Mo. App. 2016) (Feb. 3, 2016) the court of appeals denied claimant's attempt to enforce a purported  "settlement" in a personal injury suit prior to a trial.  

The court found that movant failed to preserve an issue of appeal. A denial of a motion for summary judgment is typically not a final order to support an appeal.  Further,  the movant's  record was not adequately supported with evidence to show facts (either by stipulation or court finding) that were uncontroverted and supported the existence of an agreement.  The circuit court denied the motion without an evidentiary hearing.   In this case the movant offered no additional evidence of a settlement agreement at the trial.  The court of appeals indicated that an evidentiary hearing is preferred to address such concerns.  The court further notes that the movant and the non-movant dispute material issues whether or not a settlement agreement even exists.

The appellate court indicated that the denial of motion could have been based on factual disputes or as a matter of law because of different interpretations of the material facts and legal conclusions.  The appellate court declined to "convict" the trial court for committing an error. 

'We note that a settlement is a contract. The parties had the right to negotiate any settlement as they chose fit," the court notes. 

The same does not apply to Missouri worker's comp. Any settlement is not an enforceable contract without engaging the comp system. 




Tuesday, February 2, 2016

Back injury during fitness-for-work exam found to be compensable

An injury sustained during a "return to work" exam arose out of and in course of employment, according to the Commission which affirmed a second temporary award.  Sanders v Rollet Brothers, 2016 MO WCLR Lexis 10 (Jan 27, 2016). 

Claimant was a 62-year male who started a new job as a truck driver and  within a few months he went off work for cardiac problems.  His employer required him to attend a fit-for-work exam as a condition of returning to work and claimant attended the exam "off the clock"

 In the course of the exam, he  experienced sharp back pain after lifting a heavy item.    The employer initially offered treatment, but then the employer denied care within the first few weeks.  The Commission affirmed an award for  further MRI testing, and physical therapy and other treatment to cure and relieve him from the effects of his injury.

The Commission indicated that claimant had the burden to show under 287.020.3(2) that the accident was the prevailing factor in the cause of the injury and it did not come from a hazard or risk unrelated to the employment.  The Commission found no statutory requirement for a claimant to establish an accident occurred "on the clock."

The employee referred claimant to a physiatrist after a temporary award  but the employer declined to provide further imaging studies on the opinion that an MRI was unnecessary based on the absence or neurologic deficits.  In a second hearing for temporary benefits, the ALJ ordered an MRI and additional benefits.  The Commission noted it intended to order penalties against the employer if it failed to "promptly" tender more treatment. 

Claimant had  a previous back injury 2 years earlier but attests that he made a full-recovery and now suffers 11/10 pain levels.  The Commission was found the employer had an obligation to treat leg symptoms which occurred about a month after the lifting incident. 

ALJ:  Kasten
Atty:  Elfrink, Johnson
Experts:  Hammond, Cantrell

Tuesday, January 26, 2016

Commission rejects total disability claim for dog bite

A housekeeper opened a hotel door and a German Shepard attacked her in a Holiday Inn in St. Louis.

 She reported injuries to the  head, neck, back, left breast, left arm, elbow and leg.  She was diagnosed with a dog bite to the breast and had therapy for shoulder tendonitis.  She asserts the accident psychiatrically devastated her and she could never work again.

She states she became afraid enter hotel rooms and that her expert told her she should quit work and "become institutionalized."  A co-worker testified that she was  "crying all the time."  She was a Bosnian immigrant and saw a psychologist at the Center for Survivors of Torture and War Trauma.  Her husband was on disability and had been a prisoner at a concentration camp. She states she has nightmares and wakes up screaming since the dog attack.

 She asserts she developed  PTSD along with pain and mood disorders.  The employer expert assigned nominal disability for an adjustment disorder in full remission. 

The ALJ concluded the accident caused undisputed physical injuries:  multiple puncture wounds of the left breast, chronic myofascial pain of the left neck and upper back, and internal derangement of the left shoulder due to acute strain and rotator cuff tendinopathy.  The ALJ found he could not "fully" rely on either psychiatric expert  but he awarded disability because both experts agreed she had some new permanent disability.   He denies future medical.

The ALJ  finds psychiatric opinion that claimant is unemployable not persuasive or credible.  The ALJ noted the employee's expert was argumentative, non-responsive and vacillated in his conclusion whether claimant was totally disabled from the last accident alone. 

The ALJ awarded the equivalent of 25% of a person for separate injuries to the breast, shoulder and psyche and partial benefits against the second injury fund based on pre-existing orthopedic and psychiatric conditions. 

Following the accident she returned to work for the same employer for 4 years.  At the time of the comp hearing, she was also pursuing a claim of benefits from social security. 

The case is Mujanic v Holiday Inn St. Louis South, 2016 MO WCLR Lexis 7 (January 21, 2016). 

ALJ Ottenad
Atty:  Niesen, Weiss
Experts:  Wolfgram, Stillings, Musich, Doll, Stock, Gee, Ralph

Commission rejects genetic defense of spinal condition

A claimant who described a sudden onset of pain following an accident established causation, and overcame a defense that his spinal disease two years later resulting in surgery  flowed primarily from genetic factors.  Wright v TG Missouri, 2016 MO WCLR Lexis 9.  (Jan. 22, 2016). 

Claimant stated he was pushing a heavy mold weighing 1/2 ton on a table with wheels and described sudden pain in his back and buttock.  The ALJ  awarded 10% for  a back strain and  found that claimant failed to prove his back surgery for a two-level herniation flowed from the accident.    The ALJ relied upon expert testimony that claimant had categorically different symptoms when he had back surgery 2 years later.

The Commission reversed and found claimant credible that his "general" symptoms never went away and that inconsistencies in the location or severity of symptoms were not material. The Commission rejects opinions of Dr. Chabot who:  "fails to identify any alternative cause (i.e. any other "factor," prevailing or otherwise) causing the disc pathology shown on the May 31, 2012, MRI, apart from vague allusions to "genetic" or "degenerative" issues, along with the unstated suggestion that these conditions must have become, for unknown reasons, spontaneously symptomatic in May 2012. Where employee was only 36 years of age on the date of injury and had no preexisting low back injuries or treatment, Dr. Chabot's theory of spontaneously symptomatic degeneration does not strike us as particularly persuasive in this case."

The Commission triples the award for PPD, awards open medical for a 41 year old claimant, and past medical bills that exceeds $388,000.  The Commission presumes the billing amount was reasonable absent contrary evidence.

ALJ  Kasten
Atty:  Elfrink, Kukowski
Experts:  Poetz, Chabot
Treater:  Fonn

Claimant fails to prove work-related heart attack

The claimant failed to prove working conditions during a morning shift caused a fatal heart attack in a denial affirmed by the Commission.  White v ConAgra Packaged Foods, 2016 MO WCLR Lexis 8 (Jan. 21, 2016). 

Claimant was found dead from ischemia.    Claimant's expert relied upon an  insufficient factual foundation to establish risk factors that  he worked a lathe continuously, engaged in stenuous "isometric" stress and worked in a hot environment.   The expert could not explain what "exertions" occurred, his assumption that he worked the lathe continuously in the morning was rebutted, and  he could not reliably infer from  a co-worker that it was "hot" to conclude that ambient temperature at the time was a prevailing factor in the heart attack.

An autopsy identified blockage of more than 75%.  Claimant  was on blood pressure and cholesterol medication.   "Dr. Schuman agreed that there was nothing unusual or different about Mr. White's work on June 30, 2012, only that the heart needed more blood than the artery could  supply. Dr. Farrar and Dr. Schuman's opinion is supported by the autopsy report which also refers to cardiac arrhythmia caused by the severe coronary artery disease."

The Commission noted the parties identified occupational disease was an issue but claimant's expert provided no opinion on occupational disease:  "As a result, we are unable to consider whether, for example, the cumulative strain of working consecutive 12-hour days in hot weather may have played any role in the cardiac event that caused employee's death."

The Commission reversed a finding that claimant failed to prove accident.  Accident is defined as  an unexpected traumatic event or unusual strain  identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.  The Commission concluded that dying is an "unexpected" event which satisfies  the definition of accident. 

ALJ Fischer
Expert:  Schuman 

PTD awarded when SIF offers no contrary opinion

Claimant established he was entitled to PTD benefits against the Second Injury Fund on the basis of prior disability to the shoulders, knees and psych.   Valentine v GBI, 2016 MO WCLR Lexis 6 (Jan 20, 2016).

Claimant fell from a ladder in 2006 and sustained multiple injuries to his right foot/ankle and claims he developed new depression.  He settled the case with the employer for psychiatric and orthopedic injuries.  He sought benefits against the fund for prior orthopedic and psych conditions which primarily seemed to involve a remote history of poly-substance abuse treated in prison.

The SIF offered no opinions to refute the conclusion that claimant was unemployable.  Both vocational experts opined that no reasonable employer would hire him due to his medical conditions and his age.   He was awarded weekly benefits of nearly $700 for life. 

ALJ:  Wenman
Atty:  Fox
Experts:  Volarich, Stillings, Poetz, Stainislaus, England

Prior ortho condition supports SIF total

The Commission affirmed an award of total benefits against the second injury fund.  Matthews v General Motors, 2016 MO WCLR Lexis 4 (Jan. 20, 2106). 

The ALJ found it was undisputed that claimant was unemployable.  At the time of the comp hearing claimant had been on social security for nearly a decade.  Claimant identified numerous prior orthopedic injuries involving his arm and leg and concluded claimant's depression and psychiatric conditions.  The Fund asserted claimant's disability flowed entirely from psychiatric issues.

The ALJ noted that Claimant lives in a trailer in Park Hills and although he previously worked many years at General Motors he now "does not even have a cell phone."

ALJ  Gorman
Atty:  Beatty
Expert:  Volarich, Gonzalez, England, Andersen