Thursday, February 1, 2018

Hip replacement re-do not caused by strain

Koch v Aldi
Jan 31, 2018    2018 MO WCLR LEXIS ----
ALJ Hart
Atty:  Cox, Barnett, Toepke
Experts: Lux

The Commission affirmed a denial of past medical bills of more than $51,000  to a claimant who fell in 2013, strained her hip, and claimed new symptoms required her to have new surgery to revise a prior hip replacement.

Claimant failed to prove the need for new hip surgery flowed from her accident based on equivocal testimony.  Dr. Lux initially stated it was unrelated and then stated the need for surgery was related based on a medical history that claimant was asymptomatic and developed intense pain after the accident.  Dr. Volarich testified the claimant remained symptomatic and missed work as the prior replacement due to wear and tear (osteolysis)  Claimant had a prior right hip replacement in 1990, a revision of the prior hip in 1996 for a failed replacement, and she returned to her former surgeon, Dr. Lux, following the 2013 accident, 17 years later.  

The ALJ awarded 15% for a hip strain and denied future medical. The Commission affirmed an award of  total disability against the second injury fund.

"She credibly testified these injuries were a hindrance or obstacle to her employment in that they limited her ability to lift, kneel, and grip. Her strength was reduced and she needed assistance from co-workers. She limped at times and had swelling in her left ankle. She had low back pain and stiffness that limited her ability to sit or stand very long."

The commission stated it deferred to the ALJ's findings on credibility, despite some inconsistencies, but noted it was not legally compelled to follow such a determination.  The commission further noted it considered issues of both causation and nature and extent, although it noted argument in the appeal was broader than the issue on the application for review. 

Wednesday, January 31, 2018

ALJ awards total for burst fracture with intractable pain

The Commission affirms a PTD  award without a separate opinion.

Claimant alleges in 2011 she fell backwards and hurt her back when she was engaged in defensive tactics training.  Claimant alleged PTD benefits against the employer or SIF. 

She was diagnosed with a L2 burst fracture.  She retired from her job in 2013.  She had previously orthopedic treatment for her low back leading up to 2008.  She reports new intolerance to sitting and she must take naps regularly during the day. 

Dr. Volarich testified claimant was totally disabled from the last accident alone due to the severity of symptoms and she required future medical.  Claimant's vocational expert indicated that restrictions suggested by Dr. Volarich precluded her from sedentary work.

Dr. Coyle assigned partial disability and did not identify the need for future medical treatment.

The ALJ awarded total disability against the employer and found claimant's reports of severe pain when she attempted to return to work as evidence that she could not compete in the open labor market. 

Connie Carty v Southeast Missouri Health
2018 MO WCLR LEXIS   (1/18/2018)
Atty:  Seufert, Harris, Kincade
Experts: Volarich, Gonzalez; Coyle, England
ALJ  Tilley

Ankle injury spirals into PTD award

The commission affirms an award of permanent total without separate opinion. 

Claimant reports he slipped off of a platform in October 2014.

Claimant treated initially for a metatarsal fracture and symptoms in his knee and back.  Claimant had previously treated for a compression fracture and went to chiropractor periodically. Claimant hired Dr. Volarich who concluded claimant developed symptoms in both knees and his back.  Claimant's vocational expert concluded that Dr. Volarich's restrictions rendered him unemployable in the open labor market.

The employer's expert concluded claimant could compete for low-skilled jobs. 

The ALJ found claimant's accident caused injuries to the ankle, knee and back and that he was credible although he was "emotional" at the hearing.  The ALJ ordered future medical.

The ALJ found the case was defended on reasonable grounds and rejected a claim for attorney's fees. 

The ALJ sustained objections to exclude a vocational expert from reading summaries about a medical condition.
 Hardwick v Conagra Foods Packaged Foods
2018 MO WCLR LEXIS ___  (1-25-2018)

Atty:  Jackson, Walsh, Doner
Experts:  Volarich, Snider, Skahan, Cordray, Climer

Commission finds PTD despite return to work

Claimant alleges he injured his neck, back and head when he fell while trying to load an air conditioner unit in 2011. 

The Commission modified the award to PTD  against the second injury fund. The Commission noted that vocational issue is:

 whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition and not simply what jobs a claimant "might" be able to perform given certain job restrictions. 

The employer's willingness to accommodate claimant for more than a year after the accident did not necessarily establish he could compete for and maintain gainful employment. 

The Commission found claimant's functional illiteracy at fourth grade level was supported by a learning disability rather than an inability to learn, and rejected the SIF that claimant was not impaired by the condition because he was employed for 30 years.

Potts v State of MO Fulton State Hospital

2018 MO WCLR LEXIS  (Jan 26, 2018)

ALJ Dierkes
Atty:  Kiefer, McCain

Video impeaches "severe and unrelenting pain" testimony

The Commission affirms an award of partial disability that claimant's assertion of unrelenting pain was inconsistent with surveillance video even though his expert suggested he should cut off his leg. 

In 2008 claimant jumped out of a runaway truck resulting in injuries to his knee, ankle, and underwent multiple surgeries.  The employer paid more than $300,000 in benefits for medical and TTD disability.     Dr. Myers felt he was 100% disabled at the knee and he should consider an amputation. 

Claimant alleges he rolled his ankle on a job in Texas in 2011 and aggravated a condition that was chronically painful.

The ALJ found his complaints of severe and unrelenting pain to lack credibility and that claimant failed to prove he was permanently and totally disabled.  He awards 70% of the left ankle and 35% for the knee.  He found the expert ratings of 20% for the knee to be inadequate. He awards open medical, noting hardware and an untreated ACL injury. 

"The fact that Claimant claims to have experienced absolutely no pain relief from the fusion certainly raises a red flag. "

"The fact that Claimant continues to ride his motorcycle, in light of his complaints of severe, unrelenting ankle pain, raises another red flag. Claimant’s recent purchase of a Jeep with a manual transmission, requiring him to operate the clutch with his left foot, raises a red flag as well, as does Claimant’s operation of heavy equipment (excavator), as shown on the surveillance video.

The fact that Claimant has told medical and vocational experts that he must use a cane to get in and out of vehicles (due to his ankle pain), when that is clearly not the case (as evidenced by the surveillance video) raises yet another red flag."

"Additionally curious is Claimant's testimony that his use of narcotic medication makes him sleep and causes him a lack of concentration. 

The ALJ noted claimant did not demonstrate any sleepiness or lack of concentration, although claimant stated his use of narcotic medication produced such symptoms. The ALJ noted "unless claimant is obtaining narcotic medication from a non-prescription source, he simply cannot be taking the large amounts to which he testified." 

Page v OCCI (Travelers)
2018 MO WCLR LEXIS ____ (1/30/2018)

ALJ Dierkes
Atty:  Holwick, Newmark, Doner
Experts: Hammond, Wiemholt, Myers, Thaler-Kane

Commission modifies SIF award to total for back surgery/psych

The Commission reverses a denial of benefits for a claimant bending over to change a hospital sheet/mattress  and awards total disability against the fund and open medical and partial disability against the employer.

Claimant in 2012 reports she experience back pain and numbness down her legs while changing a bed sheet.  The Commission characterized the accident as lifting a mattress in an awkward space.

 She saw Dr. Robson who performed a multi-level fusion.  She described continued difficulty walking, standing, and lifting.

Dr. Volarich felt she had 35% pre-existing disability.  Dr. Bernardi felt her condition was long-standing and chronic.

The ALJ found Dr. Bernardi more credible and claimant failed to prove a injury arising out of and in the course of her employment. 

The Commission noted claimant had treated for her back prior to the  accident and had epidural injections.  Prior to claimant's accident she had psychiatric symptoms but claims her psychiatric condition worsened after her accident.  She remains under the care of a psychiatrist. 

Dr. Robson, her treating physician, found the need for surgery flowed from the accident.
He did not feel she required additional medical care.

Dr. Volarich opined claimant required further medical care. 

Dr. Bernardi conceded the accident aggravated her prior condition and made it symptomatic.

Dr. Jarvis felt she had no psychiatric disability as a result of the accident.

Dr. Brockman felt that claimant required further psychiatric care based on the conclusion that the accident aggravated her prior psychiatric condition.

The Commission awarded permanent partial for orthopedic and psychiatric based on an aggravation theory, and open medical.  The Commission reframes the findings that claimant attempted to lift a mattress. 

The Commission ordered the employer to pay more than $109,000 in medical costs and rejected the defense that claimant did not ask for treatment.

Snezana Kalajdzic v  St. Louis Children’s Hospital
2018 MO WCLR LEXIS ______  (1/30/2018)
ALJ Landolt
Atty:  Niesen, Kafoury
Experts:  Robson, Volarich, Bernardi, Jarvis, Brockman


Opioid addiction considered an element to support PTD claim

Houchin v. Trimmasters
2018 MO WCLR LEXIS    (Jan 25, 2018)

The Commission affirms an award of total disability based on the findings that:

"Ms. Houchen’s work-related injuries to her neck, shoulders, psychiatric injury and opioid dependency render her permanently and totally disabled. "

Claimant in 2006  was lifting sheets of plywood that were caught in the wind.  At the time she was ripping plywood to build windows. She underwent surgery for a cervical fusion.  She developed eye problems using Neurontin.  She underwent surgeries to both shoulders. She reported symptoms in her arms and legs.  She was diagnosed with depression and chronic pain disorder.  Other profound non-occupational stressors are noted.

Her expert concluded PTD:

"taking into account her cervical conditions, bilateral shoulder conditions, visual difficulties and mental condition secondary to her work injury. Dr. Poppa and Dr. Caffrey concluded that the use of medications precludes sedentary work."

 Surveillance  showed her pushing a truck in a method that was inconsistent with her level of complaints treated only with opiates. She planned to go to California so some doctor could do multiple artificial discs.  She was "fired" by pain management for not following a patient agreement.  Another doctor suggested she wean herself from narcotics. 

The ALJ noted:

"Houchen’s exaggerations do not negate her credibility or her injuries, the exaggerations merely go to the weight given her testimony."

The ALJ noted the only vocational expert regarded claimant credible and unemployable.

ALJ  Rebman
Atty: Mandelbaum, Hallaron
Experts: Poppa, Wilson; Fielding, Wilson, Koprivica