Tuesday, September 27, 2016

Court remands denial of heat exposure death case for additional findings

Ulysses White v Conagra, WD 79449 (Mo App. 2016) (9/27/2016)

This is a death case in which the court of appeals reverses a denial of benefits and remands for the Commission to apply the correct statutory standards.

 Claimant was found dead on the floor at work.  An autopsy identified severe coronary disease causing cardiac arrhythmia with a prior 80% occlusion.

The court of appeals conclude the Commission applied the wrong statutory standard in its conclusion to find death to be an accident, and applied the wrong (and higher) standard of prevailing factor  instead of preponderance of the evidence.

Claimant's widow alleged that heat exposure caused the cardiac event. Her expert indicated that claimant had the risk of being exposed to a hot environment and that work-related exertion put him at increased risk.  The employer's expert concluded that heat was not a medical factor because the claimant had worked in similar environments before without any event, and that his pre-existing state was the prevailing factor in his medical condition. 

The ALJ denied benefits.  The Commission found that claimant established an accident but failed to prove medical causation in a 2-1 decision because the expert had insufficient information upon which to base his conclusions.  The case was submitted on an accident theory and not as an occupational disease.

Claimant alleged the Commission improperly applied the prevailing factor test to all issues of her case.

The court of appeals reversed and found evidence supported a finding of an accident (which they defined differently than the Commission)  and remanded to determine if the death did not come from a risk or hazard unrelated to employment. 

The 23 page opinion noted he Commission applied the wrong standard and did not make a factual finding if the accident (admitted) was the prevailing factor in the cause of death and did not address whether the injury flowed from a risk or hazard unrelated to employment.

The court notes section 287.120.1 requires compensation for injury or death for accident arising out of and in the course of employment.  The court noted the Commission considered death was an "accident" because it was an unexpected event.  The court noted this misapplied 287.020 because accident had four separate elements, and the Commission found one element satisfied and did not address the other three. The court ultimately concluded there as evidence to support a finding of accident but that the Commission was imprecise in this regard.  The death was the objective symptom of an injury produced by an unexpected event or unusual strain and not, as the Commission described it, compensable because it was an death itself was an 'event.'  It cannot be both an event and a symptom of an event. 

The court stated since it was conceded that the accident produced an objective evidence of injury, it was irrelevant was it was characterized as an "event" or as a "strain."  He had a sudden cardiac event caused by a specific event during a single work shift, either flowing prior ischemia or due to a hot work environment.

287.020.3 provides. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.
(2) An injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The court noted that the next issue was whether an accident arose out of an in the course of employment.   The court noted that claimant had the burden under 287.020(2)(a) to show
to show the accident was the prevailing factor in the cause of condition but declined to interpret the meaning of medical condition.  The court found the accident was the only cause of the medical condition (death).   The court noted contested evidence on the issue under 287.020(2)(b) on whether death came from a hazard or risk unrelated to employment.  The court found that claimant had to establish this element through a preponderance of the evidence and not the show have to show it from the prevailing factor standard of 287.020.3(2)(b). 

"The General Assembly amended this compensability test in 2005, and now requires a claimant to establish that the accident (not work) was the prevailing factor in causing the resulting medical condition and disability. Section 287.020.3(1). The assessment of whether the injury was related to work activities is now separately determined pursuant to section 287.020.3(2)(a) and (b). Though section 287.020.3(2)(a) also includes a prevailing factor test, it requires only that the accident is the prevailing factor causing the injury. Section 287.020.3(2)(b) is the only prong of the course of employment test that refers to work activities. It requires that an injury not come from a hazard or risk unrelated to work, but is not subject to the prevailing factor test for its proof."

The court gave recommendations on remand to "sensitive" the Commission regarding its findings.  It
noted the Commission improperly found medical evidence not credible because of lack of foundation
when there was no medical evidence to show the foundational elements were medically significant.  Such an analysis concluded medical opinion was necessary to address causation because of the complexity of the issues and then found factual omissions failed to prove causation when such lack of detail may or may not have any medical relevance.   In this case, the expert did not know the actual temperature or the extent the claimant engaged in other physical activities. 





court affirms total against employer

Jefferson Country Club v Lydia Pace, WD 79405 (Mo. App. 2016) (Sept. 27, 2016)

The court affirms a PTD award with open medical for a waitress involved in a 2002 accident.  Claimant underwent multi-level cervical fusion, treatment for her shoulder and depression.

The Court rejected each point of error on the  multifarious appeal, noting that the employer made arguments that were perplexing and without merit.  It would not disturb its deference to the commission on issues of credibility even though the employer advocated the 'preferred" diagnosis of its own experts. 

The commission's finding was not against the weight of the evidence that claimant was engaged in a rehabilitative process to support TTD when she "sought" further treatment and attempted to restore herself to health and normal activity after an initial determination of MMI.

Atty  Allen, Lindsey

Monday, September 26, 2016

Illinois Supremes allow attorney fee on future medical

Bayer v Panduit Corp., 2016 IL 119553 (Sept. 22, 2016)

Claimant fell while working a warehouse and became a quadriplegic with grave and permanent injuries.  A jury awarded him $64 million. 

 He was hired by Area Erectors, who was a contractor for Garbe Iron works which built the warehouse for Panduit Corp.   After a series of various claims and counter suits,  Bayer ultimately went to the jury solely against Panduit.

Area Erectors, which had settled the comp claim, was entitled to recover against part of the $64 million for the "substantial' benefits it had paid for medical expenses, vocational and temporary disability.  Area suspended making any further payments on 2013.

The issue in  as whether there was a claim  to attorney's fees as a percentage of unpaid future benefits.   Bayer's attorneys sought 25% of the fees they would have to pay but for the suspension of obligations.

The court found that section 5(b) was changed in 1957 to require employers to contribute the necessary costs of the their employees' recoveries against negligent third parties when the employer seeks reimbursement form the recovery.  As long as the amount of the judgment is not exhausted, Area Erectors will continue to be relieved from having to pay any recovery and reduce its ongoing obligations.  The court found the use of the phrase "gross amount of compensation" to include future medical.

The court found affirmed the circuit court that Area Erectors was obligated to pay attorney fees on future medical expenses incurred by Bayer.    

Thursday, September 22, 2016

Court looks to vocational impairment evidence to find disabling date for fund liability

Wickam v. Treasurer of the State of MO, WD 79188 (Mo App. 2016) (Sept. 20, 2016) reverses an award of permanent partial against the Fund and remanded to find permanent total disability.

An issue in the case was when carpal tunnel became a disabling condition to benchmark what conditions "pre-existed" for purposes of assessing fund liability.  The fund argued an earlier date applied of  2000, when claimant began to experience symptoms of his hands instead of 2001 when there was a recommendation for surgery, as found by the Commission.  The claimant argue that the later date applied of 2003 when surgery was performed.

Claimant treated in 1999 for a shoulder injury and had a diagnosed of carpal tunnel based on EMG studies.  Claimant in 2000 retained an expert who concluded he had carpal tunnel as a result of a work-related exposure.  In 2003 he underwent surgery.  He later settled the case with the employer.
He also settled his work related shoulder injury. 

The Commission by using the earlier date for the onset of the carpal tunnel disability it precluded consideration of sleep apnea and knee impairment. A dissent argued that disability for fund purposes existed when claimant began to miss work or impact ability to work, and not merely when diagnosis or symptoms manifested. 

The court found the controlling standard:

"An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." Garrone v Treasurer of the State of MO  , 157 S.W.3d 237 (Mo App. 2004).  There was no evidence in the Wickam from either party how claimant's carpal tunnel condition affected his ability to work prior to the surgery. The court found the Commission had insufficient evidence to make its finding when disability occurred based alone on a recommendation for surgery.  The court noted that liability attaches when vocational impairment attaches without or without surgery and the employer should not rely upon Wickam for the proposition that it did not owe anything until there was a recommendation for surgery. 

The uncontested evidence was that claimant was permanently and totally disabled as the fund apparently offered no contrary medical or vocational opinions.

It should not go unnoticed that this is pre-reform, claimant has already obtained two settlements from the employer and this SIF-only appeal involves a dispute more than a decade ago.



Wednesday, September 21, 2016

Suing co-employees for bad driving


In Evans v Ron Wilson and Monte Barrett, No. SD 33209 (Mo. App. 2016) (Sept. 19, 2016), 2016 MO App. Lexis 923, the court of appeals affirmed a summary judgment in favor of a co-worker defendant. The claim alleged negligence when a co-employee drove a forklift and ran over the foot of the plaintiff.  The case is one of multiple recent decisions which addresses when an injured worker in Missouri can sue a co-worker in common law.

 
Missouri law now bars co-employee liability unless there is proof of affirmative negligent act that purposefully and dangerously caused or increased the risk of injury, as a result of legislative changes in 2012.    For many years co-employees and employers were protected from such suits without proof of “something more” than mere negligence. Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982). Robinson v Hooker, 323 S.W.3d 418  (Mo App. 2010) recognized such claims were allowed after 2005 because of statutory reform which adopted strict construction and did not expressly preserve the defense.  The legislature “fixed” the fix in 2012, but by that point such delays had created a window to allow tort suits.  Numerous appellate decisions this year address accidents caused by co-employees arising in the 2005-2012 gap.

 

The issue at  summary judgment is whether the pleadings identify a duty separate and distinct from the employer's non-delegable duty to provide a safe workplace.

 

The Supreme Court addressed the issue in two opinions on June 7, 2016.   In Parr v Breeden, 2016 MO Lexis 188 the Missouri Supreme Court found that surviving children failed to state a cause of action against co-workers when their father died in a work-related auto accident. In  Peters v Wady Indus., 2016 Mo Lexis 189 a stack of dowel baskets fell off of a flatbed truck resulting in catastrophic injuries to the plaintiff.  The plaintiff alleged the items were negligently stacked, among other claims. 

Evans affirmed a summary judgment and noted the allegations failed to establish something more than an alleged failure to fulfill the employer's non-delegable duty to provide a safe workplace.  The court concluded that a simple allegation of negligent driving is not something more because safe driving is an extension of the duty to provide a safe work environment.  The Western district notes that its opinion conflicts with two recent opinions from the Eastern District that allegations of negligent driving was a sufficient basis to reverse a summary judgment: Abbott v Bolton, ED 100773 (Mo App. 2016) (Aug 2 2016), 2016 MO App. Lexis 756 (a co-employee drove over another employee’s foot) and Fowler v Phillips, ED 100801 (Mo. App. 2016), 2016 MO App Lexis 826 (a co-employee hit someone after pulling out of a car wash).  Whether the Supreme Court may ultimately resolve these issues remains to be seen. 

Monday, September 12, 2016

Emerging trends in 2016 future medical awards.

287.140.provides In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense


open medical without current treatment


The Commission affirmed an award for open medical for a claimant who has not pursued future medical treatment.Davis v Enterfab, 2016 Mo WCLR Lexis 56 (Sept. 14, 2016)

Claimant alleges injuries to the back and hips from a 2011 accident involving a fall in an elevator.  An MRI did not identify any new abnormality the back and  hip.  Claimant's history included a prior two level surgery to his low back.  Claimant's last medical record documented treatment in 2013 for chronic pain to the back and other body parts.   Claimant's expert regarded the accident as the cause of bilateral hip strains and an acute back injury.  Claimant's expert concluded he was unemployable in the open labor market.   In 2005 claimant settled a prior back injury for 25% BAW.

The ALJ found the accident aggravated pre-existing spinal disease and bilateral radiculopathy.  The ALJ awarded 60 weeks of disability against the employer and PTD against the Fund, noting the Fund offered no contrary evidence.  The ALJ awarded open medical against the employer based on claimant's testimony that his condition became worse and expert opinion from Dr. Volarich. 

The Commission encouraged the parties to reach a settlement to close out future medical, but stated there was no compelling evidence to reverse the award of future medical even though claimant concedes he has not changed his course of treatment of pre-existing conditions. The Commission noted that claimant's expert indicated claimant may require different forms of treatment in the future for his enhanced disability. 

"At the present time, we cannot predict or foresee the medical treatments that may be recommended to cure and relieve the effects of the enhanced disability that employee suffers as a result of the November 2011 work injury, and the mere fact that employee has not, to date, sought or desired significant additional treatment beyond that which he was receiving before the work injury does not, alone, rule out the reasonable probability that he may require such treatment if his symptoms worsen.
The evidence in this matter suggests to us (and we so find) that there is a reasonable probability that employee may have a future need for medical treatment flowing from the effects of his work injury. Employee testified he now needs between six to eight hydrocodone pills to manage his symptoms per day, which is more than what he was taking before the November 2011 work injury. The fact that taking hydrocodone may also benefit employee's earlier injuries is, as the Tillotson court makes clear, irrelevant. Meanwhile, Dr. Volarich's recommendations for future medical treatment in 2013, while [ substantially similar, are not identical to those he provided in 2004. Specifically, in 2013, Dr. Volarich recommended, for the first time, consideration of a TENS unit and radiofrequency ablation procedures if employee experiences a worsening of his symptoms referable to lumbar radicular syndrome."


open medical awarded without current prescriptions

The absence of current medical use did not preclude an award for open medical.    City of Columbia v Palmer,  2016 Mo App. Lexis 818, the court of appeals affirmed an award of permanent total benefits against the employer alone with open medical.  The court criticized the employer for criticizing the employer for not trying harder to get better. 


open medical award typically not limited in scope

wards that were limited in scope of future medical treatment were inappropriate, according to the Commission.  "We do agree that an award of future medical treatment limited to any specific treatment modality is not, generally speaking, appropriate; instead, we have long held that an award of future medical treatment should track the language of § 287.140 RSMo and require the employer to provide any and all treatments that may reasonably be required to cure and relieve the effects of the work injury. This is because  a more specific award would require the fact-finder to speculate as to what treatments may reasonably be required in an unknown future." (emphasis added). The employee contends it was entitled to prescription medication in addition to other medical treatment.  The Commission agreed, and felt he award was not limited in scope.

In Randazzo v Maxim Health Services, 2016 Mo WCLR Lexis 52 (August 26, 2016) the Commission affirmed an award of future medical, and clarified the award included open medical and was not limited to prescription treatment only.   This suggests that if the parties wish to narrow the scope of future medical in an award, the parties should narrow that issue in dispute instead of  a general dispute about "future medical." If parties in a settlement contract can agree to fund no future medical, the parties should be able to contract to pay for some limited forms of treatment such as the removal of hardware, or a lump sum generally designated for future medical expenses, or a set aside. 




open medical post fusion

In Boughton v Skaggs Community Hospital Association, 2016 MO WCLR Lexis 44 (July 27, 2016), the Commission addressed when a claimant is entitled to open medical following a neck fusion.  The answer in the case:  pretty much all of time.

The case involved a 43 year old woman who worked as  a certified nurse and fell backwards while working in Branson MO in November 2013.

Claimant sought emergency room treatment after her fall. She treated with Dr. Woodward for neck, back and shoulder symptoms and diagnosed multi-level spondylosis.  In April 2014 she underwent fusion with cages.  Dr. Woodward ultimately rated her with a 10% disability.  He felt she required no further treatment for her neck.  He found facet and ESI injections may or may not provide temporary relief and were contraindicated because of claimant's poorly-controlled diabetes.  She had been treated in crisis with blood sugars exceeding 900.  He found no evidence of adjacent segment condition.

Claimant's expert, Dr. Mullins, concluded claimant had a 25% disability and pain complaints including shooting pain and tingling sensations.  The ALJ awarded 25% disability. 

The Commission reversed the award for future medical. The commission finds the right to future medical is unconditional. 

In determining what treatment is required the commission deferred to Dr. Mullin's opinion and found Dr. Woodward not persuasive that treatment is not reasonably required just because it may not work or was not currently indicated.   The commission concluded if claimant had credible recurring pain complaints it was reasonable to award medical treatment to treat them. The commission concluded treatment was reasonably probable even though the treating doctor did not.  The commission did not expressly address the issue that certain proposed treatment were not reasonable because they posed a hazard to her uncontrolled diabetes. 

The commission further modified the award and added an additional  5%  disability to the low back and relied upon expert opinion from Dr. Mullin.  Dr. Woodward did not provide an express rating for the low back nor did his records reflect ongoing treatment for the low back.   The Commission found that Dr. Woodward's lack of treatment of the back beyond the first visit did not support the absence of permanent disability to the back.   "In our view, this rationale does not effectively rebut the contrary opinion from Dr. Mullins."



ALJ Holden
Atty:  Murphy
Experts:  Mullin



Emerging trends in 2016 future medical awards.

287.140.provides In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense


open medical without current treatment


The Commission affirmed an award for open medical for a claimant who has not pursued future medical treatment.Davis v Enterfab, 2016 Mo WCLR Lexis 56 (Sept. 14, 2016)

Claimant alleges injuries to the back and hips from a 2011 accident involving a fall in an elevator.  An MRI did not identify any new abnormality the back and  hip.  Claimant's history included a prior two level surgery to his low back.  Claimant's last medical record documented treatment in 2013 for chronic pain to the back and other body parts.   Claimant's expert regarded the accident as the cause of bilateral hip strains and an acute back injury.  Claimant's expert concluded he was unemployable in the open labor market.   In 2005 claimant settled a prior back injury for 25% BAW.

The ALJ found the accident aggravated pre-existing spinal disease and bilateral radiculopathy.  The ALJ awarded 60 weeks of disability against the employer and PTD against the Fund, noting the Fund offered no contrary evidence.  The ALJ awarded open medical against the employer based on claimant's testimony that his condition became worse and expert opinion from Dr. Volarich. 

The Commission encouraged the parties to reach a settlement to close out future medical, but stated there was no compelling evidence to reverse the award of future medical even though claimant concedes he has not changed his course of treatment of pre-existing conditions. The Commission noted that claimant's expert indicated claimant may require different forms of treatment in the future for his enhanced disability. 

"At the present time, we cannot predict or foresee the medical treatments that may be recommended to cure and relieve the effects of the enhanced disability that employee suffers as a result of the November 2011 work injury, and the mere fact that employee has not, to date, sought or desired significant additional treatment beyond that which he was receiving before the work injury does not, alone, rule out the reasonable probability that he may require such treatment if his symptoms worsen.
The evidence in this matter suggests to us (and we so find) that there is a reasonable probability that employee may have a future need for medical treatment flowing from the effects of his work injury. Employee testified he now needs between six to eight hydrocodone pills to manage his symptoms per day, which is more than what he was taking before the November 2011 work injury. The fact that taking hydrocodone may also benefit employee's earlier injuries is, as the Tillotson court makes clear, irrelevant. Meanwhile, Dr. Volarich's recommendations for future medical treatment in 2013, while [ substantially similar, are not identical to those he provided in 2004. Specifically, in 2013, Dr. Volarich recommended, for the first time, consideration of a TENS unit and radiofrequency ablation procedures if employee experiences a worsening of his symptoms referable to lumbar radicular syndrome."


open medical awarded without current prescriptions

The absence of current medical use did not preclude an award for open medical.    City of Columbia v Palmer,  2016 Mo App. Lexis 818, the court of appeals affirmed an award of permanent total benefits against the employer alone with open medical.  The court criticized the employer for criticizing the employer for not trying harder to get better. 


open medical award typically not limited in scope

wards that were limited in scope of future medical treatment were inappropriate, according to the Commission.  "We do agree that an award of future medical treatment limited to any specific treatment modality is not, generally speaking, appropriate; instead, we have long held that an award of future medical treatment should track the language of § 287.140 RSMo and require the employer to provide any and all treatments that may reasonably be required to cure and relieve the effects of the work injury. This is because  a more specific award would require the fact-finder to speculate as to what treatments may reasonably be required in an unknown future." (emphasis added). The employee contends it was entitled to prescription medication in addition to other medical treatment.  The Commission agreed, and felt he award was not limited in scope.

In Randazzo v Maxim Health Services, 2016 Mo WCLR Lexis 52 (August 26, 2016) the Commission affirmed an award of future medical, and clarified the award included open medical and was not limited to prescription treatment only.   This suggests that if the parties wish to narrow the scope of future medical in an award, the parties should narrow that issue in dispute instead of  a general dispute about "future medical." If parties in a settlement contract can agree to fund no future medical, the parties should be able to contract to pay for some limited forms of treatment such as the removal of hardware, or a lump sum generally designated for future medical expenses, or a set aside. 




open medical post fusion

In Boughton v Skaggs Community Hospital Association, 2016 MO WCLR Lexis 44 (July 27, 2016), the Commission addressed when a claimant is entitled to open medical following a neck fusion.  The answer in the case:  pretty much all of time.

The case involved a 43 year old woman who worked as  a certified nurse and fell backwards while working in Branson MO in November 2013.

Claimant sought emergency room treatment after her fall. She treated with Dr. Woodward for neck, back and shoulder symptoms and diagnosed multi-level spondylosis.  In April 2014 she underwent fusion with cages.  Dr. Woodward ultimately rated her with a 10% disability.  He felt she required no further treatment for her neck.  He found facet and ESI injections may or may not provide temporary relief and were contraindicated because of claimant's poorly-controlled diabetes.  She had been treated in crisis with blood sugars exceeding 900.  He found no evidence of adjacent segment condition.

Claimant's expert, Dr. Mullins, concluded claimant had a 25% disability and pain complaints including shooting pain and tingling sensations.  The ALJ awarded 25% disability. 

The Commission reversed the award for future medical. The commission finds the right to future medical is unconditional. 

In determining what treatment is required the commission deferred to Dr. Mullin's opinion and found Dr. Woodward not persuasive that treatment is not reasonably required just because it may not work or was not currently indicated.   The commission concluded if claimant had credible recurring pain complaints it was reasonable to award medical treatment to treat them. The commission concluded treatment was reasonably probable even though the treating doctor did not.  The commission did not expressly address the issue that certain proposed treatment were not reasonable because they posed a hazard to her uncontrolled diabetes. 

The commission further modified the award and added an additional  5%  disability to the low back and relied upon expert opinion from Dr. Mullin.  Dr. Woodward did not provide an express rating for the low back nor did his records reflect ongoing treatment for the low back.   The Commission found that Dr. Woodward's lack of treatment of the back beyond the first visit did not support the absence of permanent disability to the back.   "In our view, this rationale does not effectively rebut the contrary opinion from Dr. Mullins."



ALJ Holden
Atty:  Murphy
Experts:  Mullin