Thursday, March 31, 2016

Commission finds "new" disablity for worker told before accident she was unable to work

The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to  her back and had 6 previous spinal surgeries in a recent period.  Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).

The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in  September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was  placed on restrictions and told she could no longer work.  Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market. 

The ALJ found   "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "

The Commission reversed and found  that claimant had sustained new disability from a lumbar strain.  The Commission found claimant's expert unrebutted that claimant  sustained a new medical "condition" even if her "overall" condition flowed from prior conditions.  "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."

The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation.  The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy. 

ALJ:  Boresi
Atty:  Griffiths

Claimant fails to prove PTSD case from shooting

The Commission affirmed a denial of PTSD from a shooting incident a police officer.  Bell v St. Charles County, 2016 MO WCLR Lexis 20 (March 17, 2016).

In March 2010 the claimant worked as a deputy sheriff and hurt his back when he fell to the ground during a gun battle.  He ultimately underwent surgical treatment for a herniated disc and was awarded partial disability or that injury.  He did not sustain any direct injury from the gun but fell on his canister of mace in his belt. 

The commission affirmed a denial of PTSD based on competing expert testimony whether on not claimant  sustained PPD as a result of developing symptoms of nightmares, sleep disturbance and some avoidance.  The ALJ found a psychiatrist opinion more reliable based on her credentials.  The expert  concluded that claimant's symptoms did not meet the full diagnostic criteria for PTSD, although they supported an adjustment disorder.  Claimant's expert, a neurologist, had assigned an additional 30% disability as a result of the PTSD and stated he had frequent experience working with veterans who claimed they had PTSD. 

Claimant asserts that shootings with his employer in St. Charles were "rare."  Claimant had been involved in several other shooting incidents with his former employer, the City of  Jennings "but that was different because it was expected and he was prepared for it."

ALJ:  Kohner
Atty: Wuebbeling
Experts:  Cohen, Pribor

Staffing agency tagged for parking lot fall as joint employer

An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO  in 2009.  The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).

Clamant worked for Penmark.  Penmark sent her to work at a food plant at Reckitt-Benekiser.  Reckitt controlled her activities on the job.  Benekiser paid Penmark  and Penmark paid her salary.  She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.

The ALJ found that while Reckitt may arguably be an statutory employer but  Penmark was the only liable employer under the subrogation statute as it was an insured entity.  The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmark.  Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case. 

The Commission reversed and found claimant provided joint services for both Penmark and Reckitt and as joint employers Penmark was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided.  As claimant established one employer (Reckitt) owned and controlled the lot, then Penmark became liable too because claimant only had to show liability of one employer to attach liability to joint employers. 

The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine.   The commission notes that the 'on premises' statutory requirement  was removed after reform and that post-reform cases have awarded compensation for  parking lot injuries  when the employer owns or controls the property.

The Commission awarded about $40,000 in benefits.

The employer offered no medical expert as a defense.  Claimant relied upon opinions of Dr. Paul to establish disability.  The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved.  The Commission limited its award of disability to the wrist based on its finding that clamant "downplayed' her  condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist. 

The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots. 

A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.

ALJ Mahon

Monday, February 29, 2016

Commission denies benefits when claimant does not show up for trial.

There is the old Woody Allen line about 90% of life is just showing up.  After numerous opportunities, the claimant failed to show up for a hearing and the Division denied her case for failure to prove "injury." Stovall v Convergys,  2016 Mo WCLR Lexis 18  (Feb. 24, 2016).

The case involves a 2011 accident.  The parties stipulated that claimant had injury by accident and that the employer had provided medical benefits for an injury to the right leg.  The case was set on 4 separate occasions for a trial and the Division granted continuances on 3 previous occasions to allow claimant to pursue further discovery.  On the last trial date, the judge delayed trial by nearly 2 hours because claimant asserted she had problems getting to court by a bus and then proceeded when claimant still did not show up by the end of the hearing. 

Claimant's counsel had not obtained a medical report and claimant declined previous settlement offers in the case.  It is unclear if the trial settings were by mutual consent or not.

The Commission affirmed the award without a separate opinion.  There is a distinction between the separate issues of accident and injury.  The ALJ made the finding that claimant "failed to establish a compensable injury."  The parties, however, had stipulated that claimant had an "injury by accident" but did not stipulate to disability or accident.  It was claimant's burden of proof to show she sustained an accident because it was never a stipulated issue.  Claimant asserted she had injured her back in the accident when in  the award the employer stipulated claimant had a leg injury.

The case demonstrates the vexing problem of clients with unreliable transportation and the extraordinary efforts the DWC will exhaust before defaulting a claimant.


ALJ Hart
Atty:  Bohlje, Simon
Experts:  none identified

Claimant shows still 'on the job' after leaving work

Claimant was struck by a cleaning cart in a common hallway on her way home, and sought worker's compensation benefits to her low back, head and body as a whole.  The Commission affirmed a denial of benefits.

The case is important for the commission's analysis in dicta that an accident arises in the course of the employment even after claimant leaves the employer's property because going home with an intent to work is a travel between job sites which keeps accidents under the comp umbrella. 

Claimant testified she worked as a nurse and was leaving work in August 2010.  The 66 year old claimant stated she fell down when she was bumped by a cleaning cart as she was trying to get into the elevator.  She was carrying a laptop to take home work at the time. 

She sought to obtain benefits for a back surgery with a PE.  She had prior hip replacements and back pain before the accident.  Her expert concluded she had failed back syndrome and was unemployable in the open labor market. 

The ALJ found the case not compensable as claimant was "going and coming" to work.  The lease did not establish any right of control of the area by the employer.  Claimant testified she "intended" to do work on the laptop when she went home on the weekend. 

 The Commission found the case involved a dispute whether the injury arose out of an in the course of the employment, although the parties framed it under a theory of extended premises.  The commission noted the statute did not require the employer to own or control the premises for a case to be compensable.  In its analysis, it concluded because claimant was carrying a case with intent to perform further work she was in the course of her employment, but that claimant failed to show the accident arose out of her employment without identifying an employment "risk."  This supported a finding that she had an accident during a "shift", even though claimant had left from work. 

"Certain facts surrounding employee's accident might support at least an inference of greater risk: the darkened elevator, the fact that employee was leaving work after hours (suggesting she might have been more likely to encounter a maintenance worker with a cleaning cart) , or the fact that she was carrying work in a rolling briefcase, which may have affected her balance and her ability to keep herself from falling or from mitigating the consequences of her fall. After careful consideration, however, we deem the record simply too vague to support affirmative findings as to any of these possible indicators of increased risk."

The commission disagreed with the ALJ's analysis that claimant's work ended when she left the suite and came to a common area and concluded because claimant was going home to work and going from one work location to another and  she was still 'on the job' for whatever happened.   Jensen-Price v Encompass Medical Group, 2016 MO WCLR Lexis 17 (Feb. 24, 2016)

ALJ  Cain
Expert:  Koprivica 

Monday, February 22, 2016

No PTD on SIF claim.

The commission denied a claim against the SIF of PTD based on claimant's testimony about her ability to work when her expert imposed restrictions but did not expressly make a finding of PTD.

The case is instructive how the Commission addresses issues regarding credibility.   The ALJ specifically noted that the defense expert was more persuasive.  The Commission  in a separate opinion "disclaims" this finding.  In effect, it states although the ALJ meant the defense expert was more persuasive she didn't really mean it because the defense expert found claimant had no disability and if she really meant it she would not have awarded some disability.   The Commission noted changes in claimant's testimony impacted the reliability of the testimony, but the Commission would not go so far as to suggest the claimant tried  to mislead anyone.

A defense expert found the claimant's  "jovial" demeanor inconsistent with her claims of multiple prior disabilities. 

The ALJ awarded about $20,000 in second injury fund benefits, which was affirmed by the Commission. Gonzalez v Con-Way Truckload, 2016 Mo WCLR Lexis 13. (Feb. 18, 2016).


ALJ:  Fischer
Atty: Murphy.
Experts:  Volarich, Eldred,  Graham, England

Tuesday, February 9, 2016

Flying gator presents risk management problem

A 24-year old driver at 1:30 a.m. pulls up to a Wendy's drive-thru in Jupiter, FL , orders a drink, and then reaches into his vehicle when the attendant is not looking and tosses an alligator through the window.

The guy's Mom later notes that her son  really likes Steve Irwin, and that he enjoys pranks, and he "does stuff like this."  He acquired  the gator from the side of the road before pitching it through the drive-through as a prank on someone he knew inside the restaurant. 

A police officer responded to the scene and released the 3 1/2 foot gator to a nearby canal. The story notes  that the gator was not fully grown.    A judge ordered him to stay away from Wendy's and play with his mom's dog instead and maybe see a mental health doctor.

He was charged with a variety of offenses including unlawful transporting or possession of an alligator and assault with a "deadly" weapon, among others.  The story goes on to report that he was wearing his hat backwards.

This example, of course,  shows why Florida  fully embraces Dave Barry's  phrase "and-I'm-not-making-this-up"    A few years ago a reptile store owner in Broward County made national headlines for swinging a bearded dragon lizard and hit his employees with it. One can't forget that old Florida tradition of  letting young boys and girls swim with captive alligators.  What could go wrong?

This  prank  presents an interesting problem in the world of risk management that employees bring with them all of their "associational" risks of spouses, boyfriends, and whatever. 
 Is the problem of gators flying through the drive-through window a risk that has been property addressed in the employee safety manual?   "We have a gator here.  What page is that on, again?"
Considering the number of gators present in southern Florida this clearly demonstrates the need for a "no gators inside' rule just like TSA warns people not to bring their explosives and excessive amounts of maple syrup onto planes.  This rule needs to keep in mind any ADA obligations about registered reptiles as service and emotional support animals. 

 In most states, this event would cause an uproar that everyone inside the restaurant would file PTSD comp claims but Florida has taken care of this in its comp code, 440.093,  to bar recovery   for "mental" only claims. If someone, however,  broke a toe nail running away that might be an entirely different comp story because that is a physical injury that might produce obvious emotional scars, especially if one is fond of flip flops. 

The comp exclusion does not say anything, however, to stop the right of the gator itself from suing.  If Naruto  the Macaque can tie up federal courts whether he has intellectual property rights for his own selfie, it seems  the gator expressing its own right of personhood  should have a remedy for such a wrong.   PETA should be all over this --  maybe a class action on behalf of all other gators cruelly exploited in pranks as examples that while gators play in all kinds of weather and stick together they just can't fly.

Jupiter is a north Miami suburb. 


https://www.washingtonpost.com/news/post-nation/wp/2016/02/09/assault-with-a-deadly-weapon-florida-man-charged-with-throwing-live-alligator-into-wendys/