Wednesday, December 31, 2008

Top Ten 2008 Cases From the Commission

1. An Employer Settlement that includes "all claims to arm" doesn't stop a carpal tunnel claim.
Claimant settled a claim of disability to her arms with her employer in 2005 to include "all issues and claims." She then pursued a subsequent claim for benefits related to a 2004 claim of carpal tunnel syndrome. The Commission rejected a res judicata defense and upheld an award of over $21,000 in additional benefits on the carpal tunnel claim. Claimant's carpal tunnel condition at the time of the earlier settlement had been diagnosed but not treated. The Commission noted the employer did not specify carpal tunnel as a condition on the earlier settlement. The lesson is that employers must exercise caution specifying conditions in any washout settlements.
Kelly v St. Francis Medical Center, DOLIR 2-28-08.
cf Brown v Trilla Nesco, DOLIR 10-5-05 (finding 2nd claim barred)

2. An Employee Loses When an expert fails to allocate which accident with the same employer caused disability.
The Commission denied benefits when a claimant who underwent a back surgery relied upon an expert who failed to allocate which of two successive back injuries caused the disability. It is not sufficient to show that the complained of injury resulted from one or the other of two causes. The cae should be viewed in contet of recent decision Bock v City of Columbia, WD 69674 (Mo. App. 12-30-08) which required no allocation when subsequent injuries are minor and within the lay understanding and Commission expertise.
Pursifull v Braun Plaster, DOLIR 1-3-08, affirmed 233 S.W.3d 219 (Mo. App. 2008),%20Michael.htm

3. Claimant denied benefits from unexplained knee pop.
The Commission denied benefits when the claimant walked briskly to his truck and his knee popped. His surgery revealed no tear, despite a positive MRI. The court found the cause of the pop as unexplained, and that claimant also walked briskly away from the job.
Miller v Mo Highway Transportation Comn, DOLIR 7-25-08.

4. Claimant denied medical bills for unnecessary surgery.
Claimant sustained a compression fracture and the employer did not provide benefits, although doctors recommended continued bracing and pain medicine. Claimant subsequently underwent a corpectomy, which the commission found to be a diagnostic procedure to determine whether cancer caused an abnormality, and relied upon expert opinion of a neurosurgeon who stated the procedure was unnecessary. The Commission found claimant's expert failed to explain how a painful, radical surgery is necessary. The lesson is employers can sometimes prevail with well-qualified, credible expert to successfully contest surgical bills.
Stephens v St. Louis County Board of Education, DOLIR 1-18-08.,%20Virginia.htm

5. Employer Sanctioned for Refusing Offers on Admitted Accident
The employer admitted liability, accident, and its expert found disability but the employer refused to negotiate any settlement, and asserted a spurious first amendment argument that it had the right to vigorously defend cases. The Commission upheld an award for sanctions. In several related cases, the Commisison refused to award fees noting that the disputes did not involve well-established law. Courtney v Skaggs Community Hospital, DOLIR 2-14-08 (new notice law), Crumpler v Walmart, DOLIR 10-17-08 (idiopathic defense), Nolan v Degussa Admixtures, 8-1-08 (drug tests), and Sprouse v Superior Asphalt, DOLIR 2-11-08 (reversing an award of fees on a causation dispute.)
Clark v Harts Auto, DOLIR 5-28-08.

6. Commission awards over $300,000 in temporary award for autoimmune disorder from silica exposure
The employer loses in a battle of the experts, noting the employer's expert was less persuasive and less informed when the employee's expert used textbook citations and the employer's expert conducted limited research from the internet.
Rufer v Monett Metals, DOLIR 10-31-08.

7. "Increased Risk" argument alone fails to support award for future medical or causation
A claim for future medical benefits failed, based on expert testimony that hip surgery somehow placed claimant at increase risk for a lumbar fusion.
Ratchford v Price Chopper, DOLIR 1-3-08.,%20Georgia.htm

A claim that exposure to laundry placed claimant at increased risk of bacterial infection, did not support causation when contamination could arise from nonoccupational causes, remained dormant for long periods of time, and there was no specific evidence of exposure, even though an expert stated it was "more common" in hospitals.
Vickers v Mo Dept. of Public Safety, DOLIR 1-2-08,%20Barbara.htm

8. Bouncy Ride Supports PTD award for Back Injury.
The Commission upheld a permanent total award to a clamant who underwent a two-level spinal fusion after she worked as a bus driver for two years. She alleged as complications she also lost a kidney and became depressed. She offered photographs of uneven roads and testmony of her husband who worked on buses and testified the buses were old and had no shock absorbers.
Taylor, dec. v Ballard R-2 School District, DOLIR 2-1-08.,%20Glennda.htm

In similar claims, the Commission awarded benefits for a bus driver with a bouncy ride, Ball-Sawyer v Blue Springs School District, DOLIR 4-3-08, but rejected a bouncy ride case, Rigdon v Tower Rock Stone Co., DOLIR 4-5-08 (noting problems with claimant's medical history).

9. Claimant working denied life time benefits.
Claimant alleged he was in too much subjective pain and medication prevented him from gainful employment, but the Commission denied benefits as he was working as a real etate agent and survelience showed him attending sporting events without any guarded movement.
Myers v Helig Meyer Furniture, DOLIR 3-10-08

10. Malingering gets claimant in the end.
Claimant alleges his back "popped' while taking out trash at his employer's bakery. The employer's expert found no objective basis to explain why claimant stated he was now paralyzed and suggested he might be malingering. The judge found claimant failed to prove accident or causation. The doctors in the emergency room noted claimant persisted in his story of not being able to walk/feel sensation, which was inconsistent with his claim when the doctor performed a rectal exam and claimant "jumped."
Whitehead v McArthur's Park Cake & Bakery, DOLIR 6-17-08