Friday, January 20, 2017

Pain complaints to dominant arm rendered claimant unemployable

 Nichols,  v.  Belleview R-III School District
2017 MO WCLR Lexis 5   (Kasten)
Jan 12, 2017

The Commission affirmed an award of total benefits to a 59 year old  teacher's aide who fell down 3 to 4 wet steps in 2009 and alleged injuries to the spine, left leg, and left arm.

The employer disputed injuries to the neck and back. 

She treated with therapy and injection and reported no significant improvement from an ulnar nerve surgery for severe neuropathy.  She underwent a rotator cuff repair and asserted that exercises aggravated a tremor condition.  She had COPD.  The defense expert was the primarily problem associated with her impaired ability to walk.  Her expert felt she was unemployable and disabled because of her difficulty lifting and moving.

The employer relied upon expert opinion that claimant was employable and impeachment of prior records showing significant prior symptoms which suggested she relied more heavily on oxygen than suggested by her testimony.

Claimant asserts she was unemployable because of impairment in her dominant hand, limited physical endurance and a need to lie down.  The ALJ felt the defense expert had not reviewed all of the medical records.  The ALJ noted claimant appeared highly credible that she was in a lot of pain and noted: " She moved around in her chair several times in an effort to get comfortable. She appeared to be in a lot of pain. The employee requested permission to stand and stood during her testimony. She requested to take a break during  the hearing. The testimony and observed behavior of the employee was important on the issue of permanent total disability.

Future medical awarded for degenerative disease defense

Fuller v. Elementis Specialties, Inc., Employer

2017 MO WCLR Lexis 3, 4  (Kohner)

(Jan. 12, 2017)

The commission affirms an award of partial disability to a 59 year old  machine operator with arthritis in both hands.    The case involved a 2011 onset. 
Claimant's expert contends "overuse" from packing duties caused irreversible aggravation of arthritis that required surgery to excise the trapezium.   The ALJ awarded additional disability against the second injury fund for substantial pre-existing disability to the shoulder, elbows and wrists.
 No future medical was awarded.  The award reflects an agreement that the parties agreed to hold claimant harmless if the medical provider sought further reimbursement.   The ALJ affirmed the award without a separate opinion. 
Dean Christianson represented the employee. 
In a second case, claimant slipped and fell in 2013 resulting in injuries to her knee and other body parts.  She subsequent went on to have a total knee replacement.  The ALJ found a partial disability but ordered the employer to pay for the surgery.  Both the claimant and the employer appealed. The employer contests the award for past medical benefits.  The employee claims she should have been awarded total disability.
The surgeon found her meniscus tear caused by the work injury, but that her subsequent total knee replacement and post-operative pain complaints related to degenerative conditions.  The ALJ found the total knee replacement related to the accident but denied future care.  "We find that because employee's left knee joint has been removed and replaced with a prosthetic device, any problems she experiences in the future relating to her left knee joint cannot be considered  causally related to pre-existing degenerative arthritis."
The ALJ found claimant's inability to work flowed from subsequent degeneration of unrelated conditions.  The Commission modified the decision to award total benefits against the second injury fund. 

Wednesday, January 18, 2017

No "equal exposure" defense in occupational disease cases.

Lankford v Newton County
SD 34269 (Mo. App. 2017)
(Jan 17, 2017)

The court of appeals affirmed an award of total disability and death benefits to an investigator who died from complications of a lung biopsy.

Claimant had undergone a biopsy to evaluate his lung, he sustained a stroke after the surgery, and resulted in severe problems regarding the use of his arms, his ability to walk, talk and breathe.  He was unable to return to work due to his symptoms.  The surgery removed 1/2 of his right lung, which was ultimately found not to be cancerous.Claimant died from complications of pneumonia and COPD. 

He was diagnosed with COPD several years earlier as a result of ammonia exposure from investigating a meth lab.  He smoked frequently The claimant's expert identified an MIA infection on biopsy. 

The court describes claimant took frequent smoke breaks on the roof of the court house, that he would discuss business on the roof with co-workers, and went to the roof because it was quiet and helped him "think about" his cases.  Claimant alleges he developed pneumonia and recurrent bronchitis symptoms a result of exposure to fungus in pigeon droppings on the roof. 

Claimant's expert concluded a biopsy identified a fungus and a bacteria which he felt most likely flowed from exposure to pigeon droppings, that the lobectomy was necessary to treat the infections, and the stroke was a natural and probable consequence of treatment and the hemiparesis and cognitive dysfunction rendered him unemployable.  He agreed that claimant's smoking habits were also contributing causes to his death. 

The employer's expert agreed that claimant's diagnosis of MIA, a bacterial infection, supported the need for the biopsy.   An infectious disease specialist indicated claimant could have contracted MIA from occupational or non-occupational exposure and could not conclude it was more likely work related.  An internist concluded the prevailing factor in his MIA was smoking. 

The ALJ awarded total disability benefits on March 2015and found claimant's expert more persuasive that claimant developed MIA from exposure to pigeon droppings and that his subsequent need for surgery, and complications from the biopsy , all flowed from investigating that condition.  The employer was ordered to pay back benefits of $167,811 and ongoing benefits for his surviving wife.

The employer raised a defense that the Commission erred when it reached the legal conclusion that the  claimant had no burden to show he had a greater exposure at work than exposure away from work applying the "equal exposure" defense  in 287.020.3(2).  The court affirmed this was not a required element to prove an occupational disease.

Proof of an accident is governed by 287.020. 

Proof of an occupational disease is set forth in 287.067.1&2. 

In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.  (emphasis added)

2. An injury by occupational disease is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Section 287.020.2 provides additional element for accident:

(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. (3) An injury resulting directly or indirectly from idiopathic causes is not compensable. (4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

The court of appeals found  strict construction does not include the equal exposure defense for occupational disease. The court noted that 2005 amendments to 287.067 removed the cross reference to 287.020 and the phrase "An occupational disease is compensable if it is clearly work related and meets the requirements
of an injury which is compensable as provided in subsections 2 and 3 of section 287.020"  State ex rel KCP & L Greater Mo Operations Co v Cook, 353 S.W3d 14 (Mo. App. 2011), Amesquita v. Gilster-Mary Lee Corp, 408 S.W.3d 293 (Mo.App. E.D. 2013).

The court found the commission correctly found different elements of proof to establish an accident and to establish an occupational disease.

The commission found evidence that the bacterial infection MIA was not an ordinary disease of life to which the general public is exposed outside of employment.   The commission noted defense experts did not dispute the assertion that pigeon droppings might be possible source of infection, although one expert felt the prevailing factor was smoking (10x a day) or that prevalence in the community made the condition an ordinary disease of life.

The equal exposure defense is problematic even in accident cases.  It is unclear that the employer would have necessarily prevailed if the case was remanded for the Commission to apply to equal exposure analysis.   Most interpretations in accident  cases have been very fact specific regarding the exact risk factor involved in the accident and whether it had equal exposure away from work which renders the defense weak to meaningless in most scenarios.  This interpretation has been based on "strict construction." 

The testimony  anticipated an equal exposure argument. The surviving wife testified she personally observed bird poop, she not only visited the roof a lot but "120 times" and that she recalled "each time" the pigeon droppings were "fresh and dry."   It is unclear there was any evidence that claimant had been exposed to pigeons, or rooftops, or bird droppings in a non-employment capacity.

The occupational disease statute allows the "ordinary disease of life" defense compared to the "general public." .  The court did not interpret that provision  but affirmed the award based on a prior  determination of credibility.

The employer argued its experts were more credible and may have developed the legal defense of equal exposure the first time on appeal to the commission.


Tuesday, January 10, 2017

Commission affirms total disability for foot injury

Bernand v.  Paris Ready Mix and Precast

2017 MOWCLR Lexis 1 (Jan 4, 2017)  (Fischer)

The Commission affirmed an award of PTD for a right foot injury in 2009 resulting in multiple fractures and CRPS.
The accident occurred when claimant fell backwards while changing a tire.  He developed problems with his back and his right foot. 
A doctor testified he had noted swelling, tightness, the leg being hard as a rock, and color changes. Another expert testified he had to lie down during the day.. A vocational expert felt he was employable but for the need to lie down.
The ALJ found the last accident alone rendered claimant unemployable, despite expert opinion suggesting any total was a combination and liability for the second injury fund.
 He described a high level of function before his accident  despite periodic back symptoms and a prior PPD settlement.   She noted the employer-designed physician was the only one to conclude that she had no CRPS.  The same doctor  contended he was "clinically" at MMI despite fractures that had not fully healed on x-ray.
The ALJ noted claimant's social media postings were in "sharp contraction" to his testimony but she still found him unemployable. 
"Mr. Bernand testified that he is the administrator of a Facebook account devoted to his wife's swap shop. Mr. Bernand is also the administrator for a Facebook account called the Man Cave Trading Post. Mr. Bernand said that multiple entries on his Facebook pages relating to his woodworking activities are actually   references to items his brother has made or refinished and that although the entries reflect that Mr. Bernand made or refinished items such as birdhouses, sleds, and rockers, Mr. Bernand did not actually make or refinish them. Mr. Bernand's Facebook account also contains offers to remove snow, which Mr. Bernand said were actually offers for his brother's snow removal. Mr. Bernand's brother has his own Facebook account or page on which he is active. Mr. Bernand's brother testified that he is the one who does the making and refinishing of woodworking items and he is the person who does snow removal. Mr. Bernand's brother admitted that he has attributed work to Mr. Bernand on Facebook, citing the assembly of an antique glider and the conversion of a baby cradle for which he credited Mr. Bernand for his help in completing the projects."
Attorney Scott Wilson represented the claimant. 

In an earlier case, the Commission  found CRPS flowed from a foot injury that caused multiple fractures and hypersensitivity.  Turner v Turnpike Transit, 2013 MO WCLR Lexis 220 .

Claimant's unrelated depression likely caused a relapse after her back surgery

Replogle  v.  Mexico School District, Employer; Missouri United School Insurance Company, Insurer; Treasurer of Missouri as Custodian of Second Injury Fund

2017 MOWCLR LEXIS 2  (Jan 4, 2017)

This case involved a back injury in 2006 from lifting a child into a wheelchair. Claimant was initially treated for a sprain and released from care.  She later  lost more than 100 pounds after a  gastric bypass. In the course of that care, she had discogenic symptoms.   In 2009 she underwent a two level fusion.  In 2011 she applied for disability.   She became dependent on narcotics to treat back pain. The commission affirmed in a 2-1 decision and  denied PTD benefits but affirmed an award of future  following a back surgery, and enhanced the PPD in a modified award.
Claimant alleges she was totally disabled, and relied upon expert opinion that she had a failed back syndrome and was unemployable in the open labor market.   Her symptoms became dramatically worse 14-19 months after her surgery with 10/10 pain complaints and symptoms unresolved by narcotics.  Her surgeon felt the most likely cause was that claimant regained significant weight although it was possible psychiatric conditions were also a contributing cause. 
The Commission was unable to conclude the surgery was  the prevailing cause in her current pain symptoms.  No psychiatric testimony is identified.
"Again, it appears equally likely to us that employee's recurrence of debilitating low back and radicular pain in 2011 was a product of her depression rather than the purely physical sequelae from the work injury and fusion surgery.   Employee's ability to work two jobs for approximately two years following her June 2009 surgery is further evidence undermining the claim for permanent total disability benefits. For these reasons, we adopt the administrative law judge's finding that employee failed to meet her burden of proving that she is permanently and totally disabled owing to the effects of the work injury considered alone."  (emphasis added)
The ALJ affirmed the finding that the accident caused the discogenic pain and need for surgery but she did not develop a failed back syndrome or establish a need for medical treatment related to the accident.  The ALJ awarded 35% and denied future medical.  The Commission awarded 40%.
The majority cautioned the award seemed to suggest the ALJ questioned the cause based his experience rather than the record.  The dissent criticized the ALJ for "punishing" the employee because she declined exploratory surgery to investigate a source of her complaints.  The dissent argues that claimant had established a medical condition (pain) and in the absence of a finding that her testimony of pain was not credible, the  claimant was entitled to total disability.
The majority found the employee failed in her burden of proof to establish evidence of synergy based only a conclusory opinion of her expert.
 The employee and the second injury fund appealed and the finding on future medical was undisturbed. The stipulated issue at hearing was  "Employer's liability, if any, for future medical benefits" and the award was for future medical.   The ALJ found "Employer and Insurer are also ordered to provide Claimant with future medical care as required by Section 287.140, RSMo." and notes she has retained hardware in her back. Section 287.140 imposes a general duty to "cure and relieve" and is not narrowly related to treatment of hardware.  He finds "I find that the work accident of August 29, 2006, is not the prevailing factor in the cause of Claimant's pain complaints which began fourteen months post-surgery" 
 Chronology of symptoms has a  profound impact on credibility and causation. The case further demonstrates difficult  tactical choices to include or exclude psychiatric claims.  Claimant had originally pled "psyche" but then removed the allegation. 

Wednesday, December 21, 2016

Attorney walks on claim of failure to honor lien

Truman Medical Centers v John McKay
WD 79663
Deember5 20, 2016

The defendant is an attorney who represented a client in an auto case and negotiated a settlement.  The hospital, Truman Medical Centers, claims the attorney is liable for paying the medical bill of about $2700 because he was aware of the lien and chose to ignore it.

The court affirmed a dismissal against the attorney.

Section 430.250 provides a one year suit against any person

making any payment to such patient or to his attorneys or heirs or legal representatives as compensation for the injury sustained, after the receipt of such notice in accordance with the requirements of section 430.240,

"We disagree that Section 430.250 encompasses attorneys who accept payment on behalf of their injured client and then forward that payment to the client. We find that, while Section 430.250 uses the terminology "any person," Section 430.250 requires that for liability to attach, notice of the claimed lien must have been received pursuant to Section 430.240. Section 430.240 requires notice be sent to the "person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received." Therefore, "any person" in Section 430.250 is limited to the "person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received." An attorney representing an injured client is not liable to that injured client for the injuries sustained as a result of someone ."


SIF total benefits due while claimant is "working"

Thilmony v Schwan's Food
2016 MO WCLR Lexis 83
Dec. 15, 2016

The ALJ awarded total disability in the case.  The Commission found the ALJ erred by finding claimant's MMI date in 2015 and not in 2010 when he was released from medical care.  This change impacts makes the Fund's duty to pay benefits arise sooner.

The Commission notes, however, that it "appeared" the MMI could have been in April 5, 2010

"Mr. Thilmony produced a paycheck which indicated that he got paid for work at Schwan's Foods on August 12, 2010, for the period of July 25, 2010, through August 7, 2010. Mr. Thilmony testified that this was his last payment for work performed for Schwan's Foods."

The ALJ found claimant continued to work into 2015.

"Mr. Thilmony was employed by his wife at her day care and was performing valuable services for which she would have had to hire a replacement employee should Mr. Thilmony have been unable to work in the day care. Mr. Thilmony testified  that he worked in the day care until July of 2015 when the day care closed. Thus, July 1, 2015 is the date on which Mr. Thilmony is eligible to receive permanent total disability benefits from the Second Injury Fund." notes ALJ Fischer.

The commission finds if claimant completed treatment in 2010 then he was a total in 2010 and that subsequent employment was not real work in the open labor market to disturb the finding that he was totally disabled. 

"The Second Injury Fund is liable for permanent total disability benefits beginning August 7, 2010, at the differential rate of $ 62.69 for 52.6 weeks, and thereafter at the stipulated weekly permanent total disability benefit rate of $ 485.66. The weekly payments shall continue for employee's lifetime, or until modified by law."

The award from the Commission finds the factual determination of MMI not supported by the record.  What is more important in the award, is there is not any   reduction or credit in obligation to pay disability benefits by the Fund even though there is uncontroverted evidence that that is working during some of  the same time.  It is unclear if this issue was raised on appeal. 

The commission noted the employee stipulated that PTD benefits were due on August , 2010 and it would not "second guess employee where he is willing to stipulate....[to a different date]."

The claimant was represented by attorney Uhrig.