Wednesday, September 20, 2017

Commission smokes employer in $820,000 "temporary" award

Joseph Franklin v AB Electrical Inc.
Inj. 15-094035
Sept. 9, 2017

Claimant alleges catastrophic injuries from a fall from an 8 foot scaffold in 2015 and the employer denied benefits on the basis of a positive marijuana test.  The Commission reversed the denial and awarded in a temporary award more than $820,000 in past medical benefits and an order to provide weekly benefits and ongoing medical care.

Claimant is 34-years old and has no memory of the accident.

A witness testified he saw claimant take two hits off a pipe in the morning of the accident.  He was injured in the afternoon.  Claimant tested positive for THC, a metabolite for marijuana at 1:27 a.m.  A toxicologist testified claimant would have been impaired in his perception and reaction time and such impairments would have affected his ability to work safely on scaffolding, even if such impairments were not obvious to a co-worker.  He concluded the effects could have lasted 8 hours, and claimant's accident occurred as a proximate cause of smoking marijuana on the job in violation of the employer's policy.

Claimant he smoked at work, but did not smoke marijuana at work but smoked it away from work "on occasions."  He introduces contested evidence that the witness statement about claimant smoking is not credible, based on testimony from his sister that the witness said he was "forced" to support the story.

The ALJ found the use supported both by the witness testimony and expert opinion making inferences about whether the positive drug test showed prohibited drug use in conjunction with and as a cause of the accident.

The commission noted the critical nature of the injury:   “a subdural hematoma with features of basal skull fracture and a comminuted fracture of the occipital bone and features of cerebral edema.”  Neurosurgeon Dr. Roger A. Ray immediately took the employee to the operating room where he performed an emergency left craniotomy.  The employee’s bone flap could not be replaced and was placed in storage."

The commission concluded the witness' statement was  laden with inconsistencies regarding prior marijuana use on the job, the ability to see what the claimant was smoking and was inconsistent with the employer's own statements.  The witness admitted he made an untrue statement about prior marijuana uses on the job.  Although it may  "looked like" claimant was smoking marijuana on the morning of the accident, such lay evidence was an inadequate foundation to support the affirmative defense.

The Commission gave greater weight to claimant's expert that it was speculative to infer impairment from marijuana 8 hours after ingestion.  The claimant  impeached Dr. Long who conceded in previous cases that he felt impairment could be inferred at 5 hours, and not 8 hours, unless  “someone had a Rastafarian-type stogie."

The Commission found insufficient evidence to support the drug penalty:

'The penalty provisions of § 287.120.6(1) only apply if the employee’s injury was sustained in conjunction with the use of alcohol or non prescribed drugs.   Employee’s urinalysis does not show when or in what amount he may have last ingested marijuana.  It did not identify the presence of any pharmacologically active substance in employee’s system or the presence of any substances identified as controlled.  It is undisputed that the employee’s urinalysis, alone, is insufficient to establish that the employee’s injury was sustained in conjunction with the use of a non-prescribed controlled drug. "


 He has testified that ingesting marijuana would not result in impairment five hours after ingestion unless “someone had a Rastafarian-type stogie."


The Commission found the case of marijuana tests required something more to establish the drug penalty.  The employer offered no other evidence such as claimant smelling of marijuana when he was seen at the hospital.

The Commission found the legislature changed the law in 2017 regarding drug tests but felt the law was not retroactive and would not impact its outcome.

The Commission reversed its earlier policy which gives deference to credibility findings of administrative law judges and found a lay witness and an expert were not credible, contrary to the findings of the ALJ.  The Commission suggests the employer over-relied on an affidavit with erroneous statements and seems to leave an open question whether such errors were intentional or not.

ALJ  Siedlik
Atty:  Frank, Allen
Experts:  Cary, Long
Treating:  Ray

Commision affirms PTD for failed back

The Commission affirmed an award of total disability a worker who twisted his body suddenly when using a 3 foot pneumatic gun and reported disabling back pain 3 months later. Jones v Harley Davison Motor Co., No. 11-062102 (Sept. 14, 2017)

Claimant initially treated for an elbow strain.   He had prior chiropractic treatment for his back.  After he provide notice of his back condition, the employer did not tender care for the back.   He subsequently underwent a L4-5 fusion but reported he continued to experience constant back pain.  The treating doctor assigned no disability and concluded the accident exacerbated acquired spondylolysthesis.  He reports additional symptoms related to "transition" syndrome.  Claimant identifies very limited capacity for daily activity and a need to lie down.  

Dr. Koprivica, his expert, concluded he was sat MMI in 2011, and concluded he was PTD due to a failed back syndrome even in isolation. He assigned disability for prior conditions to the low back and both shoulders.  Dr. Stuckmeyer concluded claimant required permanent restrictions but any disability was due to a combination..  The ALJ notes the employer's "best evidence" was in favor of compensation when the treating doctor "checked a box" that the condition was the prevailing factor but stated he originally did not "focus" on causation.  The expert also provided no definitive opinion whether use of a jet ski better explained the need for surgery.  Cordray felt claimant was unemployable in the open labor market due to a need to lie down and from the last accident alone, although claimant's prior disability to the arm precluded his ability to perform sedentary work.  The ALJ noted testimony from claimant's former spouse that she would "watch him suffer significant pain." 

The ALJ admitted, over objection, references to an expert report from Dr. Zimmerman that was not submitted into evidence.  The court found the experts who reviewed the report did not adopt or defer to any opinions and over-ruled the objection.

The defense relied upon a typewritten note from a therapist that claimant injured his back following his honeymoon while using a jet ski.  The therapist testified she could not explain why the entry was in typewritten notes but not in handwritten notes but "does not believe she could be inaccurate."  The spouse stated claimant did not ride a jet ski and noted at the time of the honeymoon, and after the accident, he could not little more than sit on the beach. 

The ALJ found the claimant complied with notice requirements and provide notice of the accident and provide notice of a back condition when he was later told it was related. 

The ALJ awarded 13 months of disability benefits,  and $129,236.23 n medical bills although the employer argued the bills showed a zero balance.  The claimant introduced a financial responsibility form showing liability for the entire amount.  The ALJ awarded open medical. The ALJ further awarded PTD based on the testimony of chronic pain, the need for narcotic medication and the need to unpredictably lie down during the day.

The employer appealed and claimed, among other things, that the ALJ ignored testimony and adopted nearly verbatim the proposed award of the employee.  The Commission declined to address the issue and noted the proposed awards were not made part of the legal file. 

The employer contends claimant failed in his burden of prevailing factor because his chiropractor documented no change in his condition. 

The Commission found claimant met his burden to show accident by demonstrating evidence of "an" injury but he was not required to show evidence of symptoms of "each and every" body part claimed when the symptoms of the back did not develop until 2-3 days later.  The Commission found no evidence that claimant had evidence to similar hazards away from work. 

The Commission found no evidence of prejudice to support a notice defense.  The obligation to provide notice of the nature of the injury was defined by the definition of injury to show "violence to the physical structure" and  it was the employer's burden to show prejudice when the employer later experience additional symptoms.  In this case, the employee reported back problems nearly 3 months after the accident and the employer did not exercise any right to direct medical care or minimize disability. 

The Commission noted it would not disturb a finding of PTD against the employer, when the employer did not preserve the issue on appeal that the permanent total was due to a combination of his primary injury and pre-exiting disability.  The Commission criticized the employer's brief for being discourteous, hyperbolic and inflammatory.  The Commission further admonished the ALJ that an adopted opinion include pertinent citations and "careful, impartial analysis "that only an administrative law judge exercising his or her independent judgment can provide."

ALJ:  Siedlik
Atty:  Pittman, Billam, Colling
Experts:  Koprivica, Cordray
Treater:  Drisko

Tuesday, September 19, 2017

Commission awards total for foot fracture with complications

Badock v R.P. Lumber
Inj. No 10-004-961
DOLIR 9/18/2017

Claimant slipped while getting out of a truck in 2010 and sustained a fracture with complications. The ALJ awarded permanent partial disability.  The Commission modified the award to a total against the employer.

Claimant treated for a metatarsal fracture.  He developed shortness of breath and was treated for DVT and PE.  The treating doctor released him to full duty and assigned no disability for some recurrent swelling.  He was rated by a cardiologist with a 10-15% disability following CT imaging which identified no evidence of PE.  Dr. Goldberg felt he was capable of only desk job and to be allowed to keep his leg elevated because of post-phlebetic syndrome. 

The ALJ denied the PTD claim and found the assertion that claimant required his foot to remain elevated frequently was unsupported by the medical records.  The ALJ found claimant sustained more than 120 weeks of disability. 

The Commission found claimant credible that he could not tolerate sustained activities without breaks and that his reliance on anti-coagulants would "discourage" any employer to hire him.  It noted that he had no transferrable job skills and although claimant could be active some of the time he could not be considered employable unless he could sustain that level of activity.

ALJ Boresi
Atty  Burke, Leritz
Experts:  Volarich, England, Rao

Court affirms summary judgement based on a statutory employee defense

Kayden v Ford Motor Co.
WD 870165 (9/19/2017)

Clamant fell on a parking lot at Ford's assembly plant in Claycomo, Missouri in 2010.  She was employed by U.S. Security Associates, which h was in a contract with Allied Automotive to provide security for Ford.  She claims that she fell because of a mud-like substance and that Ford created a dangerous condition when it attempted to patch a large pothole in the parking lot. 

Ford obtained a summary judgment that  Kayden was Ford's statutory employee and her exclusive remedy was through worker's compensation. 

The test for statutory employment considers four elements:  1) are activities routinely done, 2) on a regular and a frequent schedule 3) contemplated in the agreement to be repeated over a relatively short span of time and 4) the performance of which would require the statutory employer to hire permanent employees absent the agreement

The only legal question was whether the work was performed in the usual course of Ford's business.  The claimant worked 30 hours per week in the capacity to perform security, the security was routinely provided and that Ford would have hired to use its own employees if the private security business did not perform the same services

The court found these facts satisfied a finding to support the statutory employment defense.  The court noted the appellant did not "address in a substantive manner" what facts did not qualify her as a statutory employee and relied upon general principles of negligence instead of addressing the primary legal issue in the case.

Atty  Beny, Reinhold

Wednesday, September 13, 2017

Supremes vacate award for stress claim from seeing bad things

Mantia v Mo Dept. of Transportation, No. SC 95885  (Sept. 2, 2017)

In a much-anticipated decision about mental-mental claims, the Missouri Supreme Court has vacated an award of 50% partial disability and open medical to a highway worker who had  developed psychiatric conditions from exposure to grisly accident scenes over a 20-year career. The court  remanded the case to the Commission to apply the proper statutory standard. 

Claimant filed a claim in 2008.  Dr. Jovick concluded she had work-related depression and PTSD caused by her work.  Dr. Stillings agreed claimant's employment caused depression but found that highway workers as part of their customary job encounter human tragedy at highway scenes. 

The ALJ denied the claim that she failed to prove her stress was extraordinary or unusual based on testimony from the expert that her exposures were similar to other employees and other supervisors witnessed the same type of accident scenes.  The Commission reversed and awarded benefits.

The court addressed only one issue on appeal if there was sufficient competent and objective evidence to support the award. 

Section 287.120.8 provides mental injury claims for  stress require proof that the stress is work related, extraordinary and unusual, and measured by objective standards and actual events.

In this case both experts agreed that her exposure at work caused some degree of mental disability but disagreed on the diagnosis and the extent of disability. The legal issue was whether the change in the statute after reform to strict construction changed precedent whether proof of  extraordinary and unusual stress continued to apply the former 'similarly situated employee' standard applied or a more generic 'reasonable person' standard construed by the Commission which would allow greater access of benefits to jobs with inherently stressful duties.

The court noted the statute provides no guidance what proof is required to show objective standards.  The court considered MAI and found the 'objective standard for determining whether Employee's stress was compensable is whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.  This could include evidence of other highway workers as to the circumstances that are experienced as part of the job and must demonstrate the actual events she experienced were such that a reasonable highway worker would experience extraordinary and unusual stress.  This could be demonstrated most commonly by comparing the level of work related stress with other employees n similar positions.

The court noted the commission found that the employee was exposed to events that caused her stress but did apply the correct statutory standard.     The court noted the statute created "confusion as to the appropriate test" and it was 'unclear" whether the employee would have been able to present sufficient evidence to meet the requirements/

The commission analyzed the exposure as unusual, and that encountering human tragedy was outside the experience of the average reasonable person that it would be compensable. The Supreme Court noted essentially that the issue was not whether an event could cause stress, or that the event could subjectively cause stress in a party, but whether the exposure  itself (whether horrendous or not) would cause unusual stress in a "reasonable" person in a similar profession. 

This raises a higher element of proof than applied by the Commission to show through expert or lay testimony not just how an employee responds to an exposure, or that an employee testified he or she "sees" bad things, but the additional element how other people would process such exposures.      The Commission's approach is that if someone saw something that was "bad" and unusual to the general public it satisfied the "extraordinary" prong.  The effect is that people in inherently stressful jobs compared to the general public generally cannot seek additional benefits because of ordinary exposures.

The court noted the legislature created an exception for firefighters who do not have to meet the statutory standard.

Comission awards future medical based on lay testimony

Popejoy v Sauer Construction
Inj. No 05-136093
DOLIR 8/31/2017

The Commission affirms an award of permanent total with open medical to a 53 year old who fell 2 stories when a walk board collapsed which resulted in L3 paraplegia. 

The ALJ awarded PTD benefits against the employer, Sauer, which was a subcontractor for Cooksey.  Cooksey was dissolved 7 years before the hearing and Sauer was discharged in bankruptcy.   Neither employer appeared for the hearing.  The SIF requested an 'order' before they would process any bills, and on appeal alleged insufficient evidence to support an award for future medical.  The ALJ found $180,024.72 in past medical expenses but awarded $8121.50 against the second injury fund.

The Commission found the SIF liable for future medical and nursing care based on medical testimony that claimant required assistance with transfers and household chores.  The commission went on to note that expert opinion was not required when an issue did not require an expert opinion and concluded that it was within lay understanding that someone confirmed to a wheelchair would require future nursing care. 

ALJ  Hart
Atty:  Miller, Kincade
Experts:  Levy
Treater: Coyle

Commission finds accomodated job is not work in the open labor market

Kenneth Weber v Kraft Foods Inc.
No. 08-124473
Sept 7, 2017

The Commission modified an award of permanent partial to permanent total against the second injury fund and found a 65-year old employee who had gone back to work for 5 years part-time was not precluded from a PTD award because his accommodated job was unavailable in the open labor market.

Claimant had a history of prior 22%  disability to his spine and sustained a new injury to his neck and back that required surgeries.  The employer settled the case for 12.5% before trial.  The ALJ found that claimant's 2008 accident caused a need for a 2008 back fusion and  a 2009 neck fusion caused 30% new disability and the conditions combined to support a SIF award with a 20% load. 

The Commission disagreed with the conclusion that claimant established that he could work in the open labor market, even though he had been employed five years on a part-time basis.  It concluded claimant had not competed in the open labor market for the job for a customer service based on testimony from the car wash owner that he was hired out of compassion.  The commission noted that claimant did not demonstrated he maintained employment in the open labor market because his position was accommodated and the owner let him leave for personal breaks and tolerated claimant's difficulty to remember simple tasks.  The basis of the Fund's liability was based on orthopedic conditions and not on any rateable learning or mental disability.

The claimant introduced testimony from Dr. Garth Russell that claimant's two-level fusions rendered him unemployable because he is "constantly" hurting despite a history that minimizes his symptoms.  The doctor did not regard part-time work as an "employable situation."  Gary Wiemholt testified that claimant had physical limitations, that he could not be hired in former jobs, he could not be retrained, and that he did consider his part-time work "to constitute full employment."
The Commission noted that part-time work can be considered work in the open labor market but distinguished this case because claimant could come and go as he pleased and the employer felt he could not "realistically" find work anywhere else.   

A defense vocational expert noted that claimant did not have work restrictions from treating physicians that prevented his ability to work.

ALJ Dierkes
Atty:  Pirmantgen, Dunham,
Experts:  Russell, Wiemholt, England