Friday, May 22, 2015
An injured worker must show a risk source in order to recover benefits. The employer argued based on Porter v RPCS, 402 S.W.3d 161 (Mo. App. 2013) that a claimant has an obligation to identify a risk source, and since she could not identify how or why she fell she is not entitled to compensation.
The Commission in Riggins concluded an expert may establish a risk source even if the claimant has no clue why the accident occurred. The risk source must be something more than what someone encounters in normal non-employment life, such as falling off of rail cars. Gleason v Treasurer of State of Mo, 455 S.W.3d 494 (MO. App. 2015).
The idea of a non-physical risk source isn't exactly new ground. Missouri recognized working too many hours as a hazard since Snowbarger v Tri County, 793 S.W.2d 67 (Mo. 1990). In Snowbarger the claimant had worked extensive hours (86 out of 100.5), performed strenuous labor, and on his way home fell asleep and collided with another vehicle. Riggins had worked 17.5 hours from March 14-15, took a 6.5 hour break, and was injured about 12 hours into her next 17.5 hour shift.
Claimant in March 2011 apparently drifted asleep in the middle of the night while watching television after giving a resident some medication, and without explanation found herself on the floor with a broken ankle. Claimant reports she had put a resident to bed at 8 p.m, she gave medication at midnight, and in the next 3 hours she performed some house cleaning and watched television. In the middle of the night she collapsed and was diagnosed with multiple fractures of her ankle as a result of falling.
A sleep medicine specialist concluded that a shift work disorder and circadian misalignment syndrome contributed to her syncope and loss of consciousness. He concluded she fell asleep and that's why she fell. An employer's expert concluded the claimant could have been deprived of sleep but disagreed on the precise diagnosis.
The ALJ concluded claimant worked "extremely long over night shifts" with inadequate rest intervals which created a work risk that was the most likely explanation for claimant's fall. She had a 6.5 hour interval after her previous shift. The employer offered no persuasive evidence to support its assertion the fall arose from an idiopathic condition such as hypotension.
This is a very a clever premise that if work makes you tired, then being clumsy gets you compensation. Factually there is no physical hazard at all, much like Miller v MO Highway Transportation Com'n, 287, S.W.3d 671 (Mo. 2009). There is no identifiable physical risk at all. This is a level surface fall, unlike Gleason. . There is not even immobility causing a leg to "fall asleep" and an increased risk to stumble as in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999). There is no associated hazard operating a car. The cause of becoming tired does not arise from over stimulation such as responding to emergencies. It anything, liability is predicated on boredom from under-stimulation and how long the claimant has to work and not any unique hazard in the work activity itself.
Atty: Elfrink, Voigt
Experts: Schwartz, Poetz, Eisenstein, Krause
Treater: Dr. Trueblood
Thursday, April 30, 2015
Mantia v MoDot, 2015 MoWCLR Lexis 39 (April 28, 2015) charts a much lower bar for claimants to receive compensation, and it reverses a denial of benefits.
The causation is undisputed in this case. Both the employer and the employee's experts agree that claimant's job as a highway worker caused permanent psychological injury which exposed her to "horrific scenes of carnage, death and human tragedy over 20 years." Claimant asserts she witnessed over 1,000 accident scenes, that she would joke with co-workers about the carnage, and in 2008 she "eventually" developed symptoms and sought treatment.
The ALJ denied benefits and found the worker failed to establish her burden that the stress was extraordinary or unusual compared to others in the same profession. An expert indicated dealing with this trauma was "part and parcel" of the job as a highway worker.
The Commission reversed the denial, and found the expert's rating of 2.5% to be "extremely low" and awarded claimant 50% BAW based on expert testimony that claimant became depressed, cynical, angry, depressed and socially withdrawn. The Commission based its rating on a diagnosis of depression, and did not adopt the opinion of the treating physician that claimant developed post traumatic stress disorder.
Section 287.120.8 before reform required parties seeking injuries for mental stress injuries evaluate similarly situated employees in order to show stress was extraordinary and unusual. The ALJ in Mantia found that claimant proved that her work was very stressful but did not offer evidence that her work was more stressful compared to other highway workers. Her expert offered no opinion on the issue.
Williams v DePaul Health Center, 996 S.W.2d 619 (Mo App. 1999) noted the legislature did not identify what objective standards and actual events were required to establish a compensable mental claim and that the Commission could consider as a proper comparison group were individuals in a comparable work environment. "The proper comparison for purposes of Section 287.120.8 is to compare Employee's work-related stress with the stress encountered by employees having similar positions, regardless of employer, with a focus on evidence of the stress encountered by similarly situated employees for the same employer." Claimant failed in her burden of proof in Williams because she did not demonstrate the stress encountered by other hematologists within the stat lab either for this Employer or for any other employer. The employee urges the Commission's standard improperly imposed on her a new and greater evidentiary burden.
The commission's position now adopts the losing argument in Williams how to define the proper comparison group. An attorney for the claimant in Williams was appointed as chairman of the Labor and Industrial Relations Board in 2013.
Mantia reverses a long line of cases which followed Williams, including the Commission's own unanimous decision in March 2015 to deny mental stress benefits to a prosecutor. "We believe employee's job duties as a prosecutor were inherently stressful and were undoubtedly rendered more stressful by employee's home-life stressors and preexisting psychiatric problems. But the evidence convinces us that employee was not subjected to greater work-related stress than his co-workers." Kersten v Jackson County, 2015 MO WCLR Lexis 19. (March 5, 2015).
The commission in Mantia essentially concluded the comparison within the same profession deprived workers of benefits who were most at risk of injury because their job was inherently stressful which produced an irrational result when causation was not contested. Claimant must show the events are extraordinary but the definition of extraordinary was based on the nature of the events themselves and not comparisons to co-workers. "We cannot conclude that the stress employee experienced was anything other than extraordinary and unusual when, in the course of her work for employer, she listened helplessly to the screams of a child as he burned to death, accidentally kicked an accident victim's decapitated head, stepped on teeth scattered across an accident scene, breathed air filled with the scent of burning flesh, or observed the crushed skull of a coworker, to mention but a few of the many terrible events employee described in her testimony. We are confident that all rational minds [would agree with us].' It follows "It would be "unjust, unreasonable, or absurd" (not to mention supremely ironic) to interpret 287.120.8 to deny compensation to this employee...."
The Williams standard required workers in inherently stressful jobs had to show a little something more to prove a mental claim. This extra step sometimes created a default when the worker did not introduce such evidence. Mantia signals in cases in which causation of mental stress is not disputed there is very little to talk about any more.
Atty: Swaney, Wright, Sportiello
Experts: Habib, Stillings
Friday, April 24, 2015
The employee offered no evidence to agree to pay the billed service. The claimant asserts contractual discounts provided the employer a windfall from a collateral source and was unaware of any collection efforts. The Commission found this testimony nor the testimony of the affiants regarding the bills persuasive on the issue of personal liability and awarded an additional $60,000 to the employee based on the original charges.
"The affidavits do not identify the individual or individuals who negotiated or authorized the "write-offs" or adjustments, nor do they identify the various providers' reasoning in agreeing to discounts of their original charges. Nor do they contain any foundational statements that would qualify the custodians of these medical bills as authorized on behalf of the providers to fix or set employee's actual liability with regard to the bills. In fact, there is no evidence on this record that the individuals who signed these affidavits possessed any qualification whatsoever to opine as to the question of employee's ongoing liability for the bills. (We are not convinced that the mere fact that one is a custodian of records automatically confers any special authority or qualification to opine as to the actual meaning of the records themselves.)"
A big controversy is stirring in Florida with a proposal involving the same issue in this case. A bill has passed out of civil justice subcommittee, HB 1199, which sought to do away with the secrecy to juries about collateral sources in order to reduce windfalls based on "billed" charges. The bill requires disclose to jurors the actual amount paid and whether the doctor would be paid by insurance or Medicare. The reform is opposed by "mostly lawyers."
Atty: Moreland, Day
Experts: Teuter, Hyers
Tuesday, April 21, 2015
Claimant was a career employee who tore his shoulder tendon. His medical histories initially deny any accident and later document a fall. The case was tried and the ALJ found claimant failed to prove accident. Claimant appealed and lost. He then filed a second claim alleging occupational disease. The ALJ then ordered treatment in a temporary award. The employer appealed and was ordered by the Commission to provide treatment and paid about $66,000 in benefits. The claim proceeded to a final hearing which the employer lost both at hearing which was affirmed 2-1, resulting in a further award of partial disability.
The dispute arose whether claimant was precluded from litigating the issue of occupational disease in the second hearing based on the doctrine of res judicata. The court ultimately found that occupational disease was previously litigated or should have been raised. The stipulated issue in the first hearing was: "whether or not the claimant sustained an accident or occupational disease" and the denial
implicitly found that claimant failed to prove occupational disease. The problem arose because the judge only expressly found that he failed to prove that he "sustained an accidental injury" and made additional comments that he suspected claimant's shoulder condition should have been compensable as an occupational disease. The attorney took the hint and then filed the second claim.
The court finds that even if the issue of occupational disease was not fully resolved in the first case it should have been brought and was barred by res judicata because the same operative facts give rise to both claims including the same medical and testimonial evidence. The fact that causes of action arise from two separate statutory provisions did not matter. It found there was not reason to reach the issue if claimant ever sustained an occupational disease.
Two separate ALJs had found the two cases were separate and distinct causes of action based on two separate provisions. Trimmer v Johnson Controls, 2001 MO WCLR Lexis 101. ALJ Allen noted in the original award: "This is a troublesome case because I suspect that the claimant's injury to his left shoulder was the result of 30 years of hard physical labor performed for the employer. This should have been compensable. However, the claimant has pled an alleged injury from a fall." 2006 MO WCLR Lexis 118. ALJ Miner wrote the final award. The dissent at the Commission the proper remedy was to appeal the decision to the court of appeals rather than re-litigating the case in a separate proceeding.
Pace registered the judgment and both parties sought declaratory judgments whether the employer had the right to direct medical providers. This prior award included a finding that the city had previously waived its right to direct its worker to medical doctors as provided in 287.140. The trial court granted the City's motion for summary judgment and Pace appealed.
The court affirmed the summary judgment that the award allowed the employer the right to select the provider as provided in 287.140 because the award itself was "in accordance" with the statute. The court found that claimant did not timely preserve the issue because he did not appeal it to the commission regarding the ALJ and Commission's power to restore the City's right to select a provider and could not challenge the issue in a collateral attack. The court distinguished between findings of waiver for past medical care and cases in which the Commission had specifically ordered future medical services from a claimant's spouse.
Monday, April 20, 2015
The Commission rejected a defense from the Second Injury Fund that claimant was "not working" in the employer's lunch room when his chair collapsed. The Commission finds an accident compensable even though the worker is not "actively working" under the extended premises doctrine when the injury producing accident occurs on premises owned and controlled by the employer and the worker is in a place where he is allowed by custom or approval. The Commission noted proof a defective chair owned by the employer identified the risk source of a claimant's injury, that is, identification of the activity that caused the injury, and there was no evidence of similar risk source to normal non-employment life. The Commission declines to "carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographic and temporal boundaries. We deem such an approach impractical, inconsistent with the purposes of the Workers' Compensation Law." The Commission finds the collapsing chair a "hazard present in the workplace." The ALJ concluded claimant was likely working because most of his lunches were working lunches.
The worker sat in a chair in the employer's lunch room, the chair broke, and he hurt his back. The employer settled the case, and the commission affirmed an award of permanent and total disability benefits against the second injury fund. There was no dispute about medical causation.
The worker had just returned to work only about 2 months after he was released from a prior surgery at L4-5 for chronic back pain and left sciatica. While sitting in the lunch room the back leg of his chair bowed out and he collapsed. He ultimately had surgery including fusion at the same disc level for new right leg symptoms. Claimant's vocational expert indicated back pain that caused a need to rest "at will" rendered him unemployable. His medical expert found substantial pre-existing conditions. The ALJ found claimant's prior conditions and re-injury to his back rendered him unemployable. The employer settled the case. The record does not identify any medical expert opinion offered by the Fund to defend the claim.
The Fund argued that claimant's weight could cause a chair to collapse so he failed to show occupational hazard because he was equally exposed to collapsing chairs away from work.
The ALJ rejected this argument:"They suggest that because of his weight, and in the absence of proof that the chair was defective, his Claim must fail. Again, I disagree. I find no evidence in the record to suggest that Claimant's weight resulted in other chairs outside of work, or any other chairs for that matter, to collapse on him. Certainly, there were other chairs that Employer provided to Claimant, at his desk for instance, that were not shown to collapse when he sat in them." The ALJ also noted the Fund relied upon meaningless impeachment if the chair fell before or after his buttocks hit the seat.
The Fund offers no evidence regarding any risk to the same chair in a non-occupational capacity.
Section 287.020.3(2)(b) allows no statutory defense without proof of risk from the same source. This leads to an absurd result that the legislature intended to create a defense which was impossible to assert. A better understanding of what the courts are doing by this interpretation is that
employer owes the claim because the employer controlled its own exposure to risk when it bought and provided the chair to employees.
The non-occupational v occupational comparisons in 287.020.3(2)(b) defenses have been a source of a lot of litigation and denial of benefits.
Young v Boone Electric Cooperative, 2015 Mo App. Lexis 407 (April 14, 2015), involved litigation over tripping over a clod of dirt. Eberhard v G4S/Walkenhut, 2015 Mo WCLR Lexis 1 explored of the hazards of whiplash from falling toilets dispensers.