Friday, October 17, 2014
The Commission affirmed a finding that claimant failed to prove falling while turning arose out of her employment. "There is no indication she tripped over anything, there is no indication she was performing any work activity when she fell, and there is no indication there was anything on the floor to cause her fall. There is no explanation as to why she fell." She failed in her obligation to show an accident arose out of her employment.
Dr. Woiteshek, claimant's expert, concluded claimant had internal derangement from falling, but does not provide any explanation as to why claimant fell.
The case demonstrates the Commission bending over backwards not to procedurally default a pro se claimant even when the application is not a model of clarity. The Commission rejected attempts by the employer to dismiss the application for failing to meet the state requirements than any appeal state the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. Claimant asserted "My lawyer did not give information of condition at work that caused injury. Working condition were so rushed and stressful do to administration cut back on staffing and I had 5 plus job duty's and my lawyer did not present it in court." In essence, claimant files the comp equivalent of a 29.15 motion that her lawyer blew it so she gets another bite although no such remedy exists. The commission considered the belated motion filed by counsel and then over-ruled it.
The finding that the claimant was "coerced" to work on the threat of losing comp benefits is somewhat puzzling. The employer tendered medical benefits in a case that the judge herself did not find compensable. It is not exactly clear where there is coercion when the employer provided more benefits than it was legally required to do.
This case is one of several post-Miller progeny placing workers that arising out of and in course of employment is a two-step.
Atty: Cordes, Reidy
Thursday, October 16, 2014
A thorny problem for many Missouri employers is what to do with the injured worker who comes back to work on light duty and becomes, for lack of better word, a problem.
Section 287.170.4 provides : If the employee is terminated from post-injury employment based upon the employee's post-injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section or section 287.180 are payable. As used in this section, the phrase "post-injury misconduct" shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician
Bob has been fired many times by people who just don’t understand him and his doors of perception. And Bob winks at the floor supervisor: “You going to send my disability or do I need to come by to pick it up?” The employer shrugs and wondered who hired this son of a gun.
Bob’s employer must pay TTD until Bob is at MMI. There are a few exceptions in the MO comp statute to suspend TTD such as not attending exams or blowing off medical appointments and that sort of thing. None of those apply here. Then there is the neutron bomb in 287.140. An injured worker loses his right to TTD for post-accident misconduct while on light duty.
Bob may have forgotten about his multiple felony convictions when he was hired 2 days before his accident. There’s no relief in 287.140. That misconduct describes pre-accident misconduct. Bob’s injury was because he was stoned. That’s accident misconduct. Bob is a first class slacker when he comes back to work. Is his lack of esprit de corp and poor work quality “misconduct”? Probably not.
Bob stole from his employer. The cheese puffs were stolen. That works, right? In Illinois, no. Illinois has found that Wal-mart may fire a worker stealing cigarettes, but doesn’t have the right to suspend TTD benefits. There is no statutory equivalent in Illinois to Missouri's 287.140. In a recent case of Matusczak v the Illinois Workers’ Compensation Commission, 2014 Ill App. Lexis 713 (Sept. 30, 2014) Wal-mart asserted that it shouldn’t have to pay 23 weeks of temporary benefits when claimant returned on light duty and was fired because he admitted he committed a crime (stealing cigarettes), and knew stealing was a crime that warranted termination. As there is no statutory provision to suspend benefits because of termination for cause or volitional conduct there is no statutory remedy for the employer to stop TTD without medical proof that the medical condition is stabilized. Claimant asserted there was no work available in the open labor market within his restrictions even though he said he really tried to find something.
287.170.4 defines what is not misconduct but does not say what is misconduct. That's the equivalent of giving directions from St. Louis to Chicago by saying, "don't go toward Dallas."
Missouri disqualifies injured workers from collecting TTD while collecting unemployment which presumes a capacity to work. inconsistent with an incapacity to perform any work. This creates an odd incentive for employers not to protest unemployment claims in order to avoid TTD obligations.
The recent statutory redefinition of misconduct arguably gives it more “teeth” against the Bobs of the world. At the same time new cases like Templemeire make life easier to sue employers for retaliatory discharge under 287.780 and survive summary judgment.
So that applies to comp, right? Not so fast.The Missouri commission declined to adopt an opinion that applied 288 definition of misconduct to construct what “misconduct” means in chapter 287 Jones v Harris Transportation, 2009 MO WCLR Lexis 173. “We do not adopt or incorporate the administrative law judge's discussion and conclusions with regard to whether employee committed post-injury misconduct for purposes of 287.170.4."
The reformers in Missouri may have seen this coming. Many employer have anecdotes of the Bobs they have had to deal who misperceive a pending comp claim as a shield against any reprimand.
The idea that a worker who behaves badly should lose benefits resonates with business reformers. Yet forfeiture runs contrary to the general theme of comp as a statutory benefit without assessment of fault. Throwing someone on the streets who has significant medically-related work restrictions may be perceived as abusive when the misbehavior appears trivial. It is for this reason because of its profound financial impact the defense is likely to prevail only in the most egregious misconduct.
Wednesday, October 1, 2014
Claimant asserted that he had severe migraines that rendered him bedridden several times a week. He obtained expert opinion from Dr. Koprivica that he was unemployable if he had severe headaches that occurred frequently and unpredictably.
Dr. Rengachary, a neurologist, questioned the severity of any recurrent headaches, and considered the reports inconsistent with the type of medication, the infrequency of visits, and the level of activity and his behavior compared to other migraine patients. Claimant had limited care, his treating records were not consistent with his testimony regarding the severity of symptoms and he had a 5 year gap in treatment. The ALJ noted: "It would seem that someone like Claimant would use the Internet to research migraine headaches or locate a headache specialist. (Claimant clearly knows how to use the Internet, as he is very active on social sites.) Claimant, however, has never done any of this." [Does anyone under 50 not know how to use the internet?]
Dr. Friscella found medical findings were inconsistent with an acute injury to the shoulder and radiology suggested the tendon pathology was essentially unchanged from years earlier when he had a prior cuff repair.
The case demonstrates successful use of impeachment integrating expert opinion, surveillance and even case manager notes. ALJ Dierkes noted it was an "epitome of understatement to say that Claimant's credibility has been undermined."
Impeachment has its limits. Claimant still prevailed on a fairly typical award for a shoulder surgery despite the only shoulder expert indicating there wasn't anything new, an open medical award for headaches, and a combined award in excess of $50,000. The Commission affirmed the award without comment.
Wednesday, September 24, 2014
The claimant was a 64-year old nurse who was attacked twice by different patients over a 6 month period. In the first case she was trying to break up a patient fight and was stabbed in the side by a pair of scissors. In a second assault she tried to stop a fight between a patient and the doctor and she had a superficial injury to her mouth. After the first accident she began treatment for PTSD. After the second accident her PTSD treatment continued. The treating psychiatrist indicated she could work but should avoid direct patient contact because she became insecure.
SIF liability requires proof of synergy which historically has been problematic when injuries involve the same body part (back on back, for example) or the same diagnosis (PTSD on PTSD, in this case). The ALJ relied upon expert testimony that the total disability was a combination of the two separate accidents to trigger second injury fund liability.
The employer settled before the hearing. The ALJ noted weaknesses in the Fund's defense which offered no evidence to support its denial of accident. Its own vocational expert could not identify a single job that claimant could perform with 20 years of nursing experience.
Tuesday, September 9, 2014
The court agreed with the carrier that the circuit court properly dismissed the case based on lack of jurisdiction but dismissed it for the wrong reasons based of lack of subject matter jurisdiction when the real issue was primary jurisdiction as the Division should resolve the dispute first since the comp statute provided a remedy.
Wednesday, August 27, 2014
Claimant had been under care for chronic back problems, he underwent a spinal fusion, he was placed on restrictions, and found at MMI in Oct. 2004 with the caveat that his back would flare up from time to time. He resumed care with the same doctor after January 2005 event when he reported that his back flared up after loading vans at work, his x-rays identified no new conditions, and his treating physician did not apportion any disability to the 2005.
The ALJ concluded that claimant failed to establish he had an 2005 accident resulting in any new disability. . The ALJ found the initial determination of MMI before the 2005 accident was premature as claimant continued to receive further care after the 2005 accident which the doctor attributed to the earlier accident and fusion surgery.
The Commission reversed and awarded total benefits against the Fund. The Commission rejects the Fund's argument that because the treating physician allocated all disability to the pre-accident condition that lead to an inference there was no disability from the 2005 event. The Commission found more persuasive the conclusions of Dr. Poetz that claimant had a new lumbar strain and exascerbated his discogenic disease resulting in right leg symptoms. The Commission rates claimant with a 20% disability from the new accident (twice the rating Dr. Poetz provided or the lumbar condition) and awards lifetime benefits from the Fund for the 61 year old.
Claimant had prior medical conditions of 75% BAW based on the ALJ and discontinued work after heart surgery.
Experts: Robson, Gonzalez, England