Monday, November 16, 2009

Pleading issues

Demand of strict proof thereof

Civil defendants must answer a complaint truthfully and in good faith.  Parties cannot demand "strict proof" of facts they know to be true and must explicitly admit or explicitly deny allegations.  A recent article examining Illinois pleading suggests that 5/2-610 does not allow pleading based on insufficient knowledge and a party with insufficient knowledge  must either file an affidavit asserting insufficient knowledge but then loses the ability to deny the allegations.  This may undermine the ability to contest a motion for summary judgment.  Attorney Margolis writes an excellent article on this obscure point in "Pleading Lack of Knowledge; Not a Denial Under Illinois Law, " 104  IL STATE BAR J., July 2016.

In a case involving a pleading denying facts based on insufficient knowledge, was not an admission of a fact to support summary judgment.  A defendant alleges she was following another vehicle but did not admit the plaintiff's vehicle was stopped at a stop light when the accident occurred.  The accident was not witnessed.  There was insufficient information to establish a cause of action based on those facts alone, and plaintiff was unable to proceed under the Dead Man's statute because the defendant had died.   The court affirmed a summary judgment on behalf of the defendant's representative that the pleadings did not support all elements of the claim and a jury could not make a finding of negligence without relying upon conjecture.  Plaintiff conceded in oral argument that negligence could not be inferred simply because the defendant was following the vehicle before the collision  had occurred.  The case was distinguishable if defendant had admitted the plaintiff's car was stopped which would have created a prima facie case of negligence but these facts allowed other inferences that the plaintiff stopped quickly, stopped unsafely, stopped due to road or mechanical conditions.   Peakcock v Waldeck, 2016 Ill App. (2d) 151403  (August 8, 2016). 

Missouri Rule 59.01 provides

"A responding party may give lack of information or knowledge as a reason for failure to admit or deny if such party states that the party has made reasonable inquiry and the information known or readily obtainable by the party is insufficient to enable the party to admit or deny."

Failure to appear supports default

The court of appeals affirmed a default award against an employer when it failed to respond to pleadings and a final hearing for  Missouri benefits even though the employer  had provided benefits under Texas law.   Harrington v Employer Solutions Staffing, 472 S.W.3d 252 (Mo. App. 2015)

Claimant was hired in Missouri to perform a painting job in Texas and sustained various injuries in 2012.  The employer did not appear at a hardship hearing and was ordered to pay temporary weekly disability benefits and medical.  The employer did not appear at a second final hearing which ordered more benefits and penalties.  The employer's defense was that it was being defended by a carrier in the Texas claim and mistakenly thought the carrier was also defending the Missouri claim.   The Commission reduced some of the award related to TTD and penalties because the employer had been providing weekly benefits but made the express finding that by the time of the final award, the employer was already aware that no one had appeared at the temporary award. 

The court found there was no issue of law to appeal and whether the employer had a good faith excuse was a finding of fact based on their credibility and the Commission did not find their excuse for failure to defend the case as a reasonable one.

Pleadings limit scope of discovery
Pleadings which included psychiatric injuries but were later amended to exclude them removed any waiver of privilege to compel the release of the records.  The court found records protected by physician-patient privilege even though it was possible that psychiatric records might be relevant or lead to discoverable evidence if they contain some statements about the accident itself.  The privilege might be waived when the psychological condition arguably caused or contributed to the accident.  State ex rel Stacey Phillips, 469 S.W.3d 506 (Mo. App. 2015)

Late answer admits causation if pled
In Yount v Circle K, 2014 Mo WCLR Lexis 65 (May 6, 2014) the Commission enhanced an award of PPD from 7 1/2 to 25% for an ankle injury.  It concluded medical causation was a finding of fact which the employer could lose by default from a late answer, rejecting the opinion of the ALJ that it was a issue of law.  The Commission found  no default because the claimant did not pled the accident was the prevailing cause of the disputed medical condition, a peroneal tear.
ALJ  Robbins
Atty:  Larsen, Weiss
Experts:  Krause, Volarich

Compensation rate in claim used to resolve rate dispute
The ALJ adopted the compensation rate claimant alleged in his claim for compensation, even though the evidence suggested rates that were possibly higher or lower.  Voidanoff v United Samsco Assoc., 2014 MO WCLR Lexis 2.   King v American Employment Group, 2014 Mo WCLR Lexis 143 (December 30, 2014).  The employer raised a colorable defense against default that the claim was sent to the wrong corporate entity. 

Late answer admits facts in claim

8 CSR 50-2.010(8)(B) that provides "statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings."

In Skidmore v Gilster Mary Lee, DOLIR 11-26-08, claimant’s assertion that he "pulled a pin to release a trailer when he hurt his neck" could not be contested, since an answer was never filed to the original or the amended claim. In both cases, the Commission found no waiver of legal defenses.

The failure to file an answer can still result in a finding of accident, even when no accident is clearly documented in the medical records. The administrative law judge based on inconsistent medical histories denied benefits in Soles v Computer Con, DOLIR 9-2-03, which the Commission reversed the denial and awarded benefits.

Late answer waives "fact" of pled compensation rate

T.H. v. Sonic Drive In of High Ridge, 388 S.W.3d 585 (Mo. App. 2012),

2012 MO WCLR Lexis 1585 (Mo. App.  2012) 2012 Mo WCLR Lexis 102 (May 2, 2012) The claimant offered no evidence regarding compensation rate and alleged she was at the "maximum" rate on her claim for compensation. When the employer filed a late answer, the claimant asserted the employer had to pay the maximum disability rate of $376.55 per week. The ALJ agreed and awarded the maximum rate, but the Commission reversed and instead applied the minimum rate of $40 a week.

ALJ Tilley
Atty: Cantor, McManus
Expert's: Packman, Harbit

Comment:   Sonic presumably did not introduce any wage evidence because the business was closed or no wage information was available. 

An attorney also has an ethical obligation under Rule 4.3-1 to make a “good faith argument” that facts alleged are supported or could be supported. Similarly, Rule 4.3-3 prohibits an attorney from making a false statement of fact or law to a tribunal.   This may not be as demanding as  Rule 11 in federal practice that requires a reasonable inquiry as a basis of fact.   Enforcement of pleading rules in a case like Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) is unlikely to every trickle down to the day to looser pleading standards in comp.   Mo Rules of Court Rule 55.03 ( c ) requires allegations have or are likely to have some evidentiary support after a reasonable inquiry.  Any attorney may not automatically use boilerplate pleading of "maximum" rate unless  there is some good faith reason to believe with further discovery that claimant has earnings to qualify for the maximum rate to attempt to "trap" the employer by knowingly asserting  an inflated rate.

Failure to assert an affirmative defense of abandonment of care

Claimant states that he hurts his back, he is taken off work by a company doctor, and the employer disputes disability benefits during the time the claimant goes off with a buddy to the coast on a drinking binge, flies to Hawaii and stayed until he ran out of money. The claimant was in prison before for fraud and admits he lied about back pain to get out of manual prison labor. The employer files a denial of "each and every claim " but did not specifically deny benefits because claimant abandoned his treatment, which is an affirmative defense which must be specifically pled. Hayes v Compton Ridge Background,  135 S.W.3d 465 (Mo. Ct. App. 2004).

No waiver of  idiopathic defense.

An idiopathic defense is not waived if it is not specifically pled, according to Crumpler v Wal-mart, DOLIR 10-18-08 (discusses that affirmative defense must be asserted when the defense is an exception to general liability created in other sections, such as statute of limitations)

No waiver of PPD defense

The only medical expert who assessed disability concluded that the injured worker sustained 30% disability to his left eye when he was struck with a piece of wood, but claimant asserted on appeal that he should have no less than 75% disability because he pled that amount on the claim form and the employer was late filing an answer. Claimant asserted the Commission exceeded its authority by awarding less than 75% because disability was a finding of fact and the employer waived its defenses when it filed an untimely answer. Taylor v Labor Pros, WD 75174 (January 8, 2013).

There is no clear intention for the CSR rule to allow proof of the amount of disability solely by a gratuitous comment in a claim for compensation. Such an interpretation went beyond the anticipated scope of the regulation in light of its use of a standardized Claim for Compensation form that does not include a disability percentage estimation, and it usurps and undermines the "special province of the Commission" in determining disability percentages.

Claimant describes intermittent eye pain but does not use glasses, eye drops or sun glasses for his photophobic symptoms. His vision was 20/40 and 20/20 when corrected. The decision to make such findings has no material purpose to the holding except to perhaps demonstrate indirectly that such symptoms may not reflect of a 75% loss of visual acuity. It is unexplained what basis may have existed at the time the claim was filed to alleged that degree of disability.

No waiver of arising out of defense

An employer can face harsh penalties by not filing an answer on time, but the business does not lose the right to contest legal issues whether an accident arises out of employment, based on a recent court of appeals decision, Anderson, dec. v Veracity Research, 299 S.W.3d 720 (Mo. Ct. App. 2009). Claimant died in a fatal car accident when he lost control of his car. Experts identified a BAC equivalent to 10-11 alcoholic drinks. The employer did not assert that alcohol consumption was proximate cause of the accident, and officers of the Blue Springs Police Department could not state whether this was an a proximate cause to the accident. The employer contested claimant had removed himself from the course of his employment and was engaged in personal endeavors. Any inference or presumption arising from the fact that claimant was injured while on an out of town business trip was effectively rebutted by the evidence that claimant's accident was at midnight beyond normal working hours ending at 2 p.m., that alcohol was not permitted on the job, and that he possessed none of his tools of the trade he used to investigate claims fraud.

Misnomer of correct entity in name

Claimant filed a claim against Doll but not against the "father" entity R.W. Andherson, and the carrier denied claimant was not an employee even though  the names were used interchangeably.  The ALJ allowed amendment on the day of the hearing to the additional entity noting no request for continuance or evidence of prejudice.  Keith v R.W. Andherson, 2013 MO WCLR Lexis 221 (Dec. 11, 2013)
ALJ  Kohner
Experts:  Woiteshek, Koo

The Commission found no prejudice when a claim may have been filed against the wrong corporate entity.  King v American Employment Group, 2014 Mo WCLR Lexis 143 (December 30, 2014).


Omission of LLC in name of party

The employer never appeared at the hearing and the Fund argued it didn't owe anything because the employee named the wrong business on its claim.

The claimant  omitted "LLC" on the claim for compensation.  The second injury fund introduced records from the secretary of state indicating the correct name.  The Fund claims it could not seek reimbursement from the employer unless the correct employer was named.  The Commission rejected the ALJ's finding that naming the wrong entity barred a recovery.

8 C.S.R. 50-2.010(14) provides that the rules of evidence for civil cases are applicable in hearings before the Division, but the Fund identifies no authority for the proposition that a statute governing civil pleadings in the circuit courts applies to an employee’s Claim for Compensation.  The commission found pleading requirements of 509.020 do not apply in worker's compensation cases.  The court finds no prejudice for a misnamed entity when the misnomer caused   no substantial mistake, where the appropriate entity was served with process, and where the entity was not misled by the misnomer.

The Second Injury Fund first provided documents to support the defense on the day of the hearing, and the ALJ found 302.312 allowed service on the day of the hearing as an exception to the general business records rule in 490.692 requiring 7 days notice. 

The commission  proceeded with what it called a "quantitative analysis" and found  claimant had an increased work hazard as she did not "regularly exercise custody and control over other people’s children in her normal non-employment life, much less that a regular feature of such hypothetical activity involved running after children over a slippery surface."     Morrero v Kids Kick Start Campus, 2013 MO WCLR Lexis 49.

ALJ Fowler

Schoemehl issues
The commission in a case of 1st impression concluded that in open cases before July 2008 a surviving spouse can obtain lifetime benefits when the injured spouse dies from unrelated causes and it is not dispositive whether or not a claim is filed.

The court of appeals case Edwards v Treasurer of the Second Injury Fund, ED 104109, (Mo. Ct. App. 2016) (Sep. 13, 2016) involved a permanent total award from a 2006 injury.  Claimant was awarded benefits in 2009 and died in 2014.  The Commission allowed a substitution of the widow to receive the PTD benefits.  The court noted since the commission merely substituted parties it did reach any issue on the merits, and the substitution itself was not subject to appeal because it was not a final award.  The case was dismissed for lack of jurisdiction. 

The holding in Ogden v Conagra, decided by the Commission on August 5, 2016, has important implications for open PTD cases with accidents before July 2008.  In 2008 the legislature changed the rules to preclude Schoemehl benefits of ongoing life-time benefits when an injured employee receiving PTD benefits died from unrelated causes.

The facts in Ogden involve a 2001 accident, a 2009 claim and a 2014 death.  The employer disputed it owed anything more to the widow when the death was from unrelated causes because the claim was filed after he legislative fix.  The employer had continued to pay benefits for disability and medical approaching 2.5 million in the case. 

The Commission concluded the issue was whether there was a cause of action pending and not whether a claim had been filed or not.  The Commission noted there was no reason to file a claim and no justiciable issue because benefits were provided. 

 Many cases following Schoemehl struggled  to define whether or not a claim was pending to qualify for benefits when a death was unrelated.  The fight in these cases is not a fight over traditional death benefits such as burial expenses (arguably barred by  Missouri's 300 week rule) but whether a spouse can step in the shoes of the employee and keep the checks coming as a life time annuity whatever the cause of death. 

 Gervich v Condaire, 370 S.W.3d 617 (Mo. 2012) found the spouse had a (contingent)  property interest in potential PTD benefits even though the contingency was not satisfied  until after the legislative fix when the spouse died.  Similarly, in Busick v Wilson Plumbing, 2013 MO WCLR Lexis 105, a claim was filed after the 2008 fix, and  the same 2-1 majority of the Commission concluded "we are persuaded that the Gervich court's focus on the date of injury means that an employee's dependents may recover under Schoemehl where the injury giving rise to the claim for permanent total disability benefits occurs before closing of the Schoemehl window, regardless whether the claim for compensation is filed after June 26, 2008." The dissenter in Busick wrote a concurrence in Ogden and stated he "reluctantly" agreed to reverse the denial of benefits, as a result of Gervich, but regarded Schoemehl  decision as perverse that offends the notions of fundamental fairness. 

Ogden did not involve any statute of limitations issue as the case involved ongoing benefits until claimant died from an unrelated heart attack.  

Ogden demonstrates  the long tail of some comp litigation and involved ongoing benefits more than a decade after the accident.  Similarly, in Agnew a Aalco, 2014 MO WCLR Lexis 133, the court awarded Schoemehl benefits in a "found dead" case .  In both Ogden and in Agnew,  the court reported that the employer had provided more than 2 million in benefits in each case. 

The holding has  has large financial implications for a small population of old outstanding cases.    The Commission denied a request for costs and fees by the employee and found the area of law was unsettled. 

Friday, October 23, 2009


A single mother whose 19 year old son died in a car accident in the course and scope of his employment failed to establish that she was a partial or total dependent for survival benefits. Claimant testified she was totally disabled in 2003, and her son quit school to work full time to support the household. The issue of dependency is determined at the time of the injury. Claimant established she was dependent on claimant until Feb. 2005, but claimant did not provide any support from Feb. 2005 until his death in August 2005, except for paying a cell phone bill on one occasion. The court found that the Commission could have made reasonable findings that claimant had failed to establish she was a dependent at the time of injury as her son did not provide support or in-kind support such as purchasing food, clothing, or even visited claimant since he moved to Missouri to live with his girlfriend. Occasional gifts do not arise to the level of dependency and the court found it "unfortunate" that claimant did not meet her burden of proof. The case is Vice, dec. v. Advantage Waste Services, No. SD 29671 (10-15-09).

Thursday, October 22, 2009

Maximum medical improvement (MMI)

no mmi - benefits awarded for carpal tunnel

An ALJ found MMI occurred when a treating doctor imposed permanent restrictions and not the later date in a supplemental report when he officially deemed claimant at MMI.  The Commission affirmed the opinion without comment.  That finding raises several implications for the doctor to address the issue at the time of the last medical appointment to reduce disputes about ongoing or terminated TTD benefits.  Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).   

Claimant cannot  recover TTD after a determination of MMI, according to the Court of Appeals in Greer v System Foods, ED 101389 (Nov. 18, 2014), reversing an award of TTD by the Commission
 in Greer v System Food, 2014 MO WCLR Lexis 41 (3-28-2014).  The ALJ found claimant reached MMI in 2007 following a foot injury, but the Commission awarded an additional 32 3/7 weeks of TTD following a disputed revision surgery which one expert concluded was unnecessary and would have a predictably poor result. 

 "The phrase "maximum medical improvement" is not found in § 287.170 RSMo, the section authorizing an award of temporary total disability benefits, nor is that phrase defined or found anywhere in Chapter 287. Of course, the concept of maximum medical improvement is helpful to the extent it permits the fact-finder to identify the point at which the question of permanent  disability becomes ripe for determination. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). But in a case such as this one where the employee's condition does not appreciably improve (or even worsens) despite further surgeries, applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result. This is especially true here, where such a rule would require us to ignore the uncontested expert medical testimony on the issue."  
ALJ Kohner
Treater:  Johnson
Experts:  Berkin, Schmidt


Claimant was not entitled to recover SIF for a prior neck injury after he hurt his knee at work because the neck condition was not at MMI and continued to include surgical treatment.  Miller v Treasurer, 2014 MO. App. Lexis 314 (March 25, 2014).  The claimant offered no explanation to disregard the holding in Hoven v Sachs Electric, 414 S.W.3d 676 (Mo. App. 2014).


In order to recover benefits for permanent disability a claimant must show a disability is permanent. A claimant may fail to recover benefits if a claimant is not at MMI or the condition itself is not permanent.

In Hoven v Sachs Electric, 2012 Mo. WCLR Lexis  145 (July 19, 2012) the Commission reversed an award of $7305 in benefits against the Second Injury Fund because claimant failed to introduce persuasive evidence that his condition was permanent.  Claimant's expert provided a provisional rating that claimant's condition was permanent, but the amount of disability could change if claimant received more treatment.  Claimant provided equivocal testimony about plans to pursue further treatment after reporting limited improvement following previous surgeries. 

In Hoven v Sachs Electric, 2013 Mo App. Lexis 1397 (Nov. 26, 2013) the court of appeals affirmed a finding that no persuasive evidence existed that claimant's condition was permanent.  The court found that a settlement with the employer did not create a presumption of permanent disability in a claim against the fund, and indicated there was no evidence the settlement itself was in evidence. 

ALJ Carlisle
Atty: Christenson, Da-Niel
Experts: Schlafly, Lichtenfeld
Treaters: Crandall

This result is very similar to the court of appeals decision in Cantrell v Baldwin Transportation, in which a surviving spouse could not recover benefits because claimant was not at MMI at the time of his death.  Cantrell v Baldwin Transportation, 296 S.W.3d 17 (Mo. App. 2009).   Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007.  Like Hovens, the claimant obtained a disability rating and asserted he was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued.  The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.

In 2011 the Commission found without a determination of MMI by either experts, PPD could be awarded when claimant did not pursue further treatment.   Claimant's refusal to follow up for appointments or pursue further surgery supports a PPD award, even though both experts decline to find her at MMI. Claimant underwent bilateral carpal tunnel releases and reported continue complaints with grip and range of motion. Dr. German, her surgeon, provided a disability rating when she did not return for further care and previously determined she was not at MMI because of recurrent symptoms after she returned to work. Dr. Volarich, her expert, opined she had 50 % disability of each wrist but concluded she was also not at MMI but provided a rating if she declined further treatment. The ALJ noted the more thorough examination of claimant’s expert and that the surgeon based his rating on the “assumption” that claimant was fine. The case is Baxter v General Motors Corp., DOLIR 6-24-11.

ALJ Dinwiddie
Atty: Gregory Simon
Experts: German, Volarich

Additional medical treatment may undermine any expert opinions about MMI.  The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005.  Key v Aldi, 2011 MO WCLR Lexis 29.
ALJ Kohner

Wednesday, September 23, 2009

Attorney's fees and liens

Fee on future medical benefits

The Commission corrected a clerical error awarding an attorney fee on future medical and noted the record had not reported such a request for a fee and it was generally against their policy to approve a fee on future medical in a temporary award.    Buchanan v SRG Global, 2014 Mo WCLR Lexis 134

Bayer v Panduit Corp., 2016 IL 119553 (Sept. 22, 2016)

Claimant fell while working a warehouse and became a quadriplegic with grave and permanent injuries.  A jury awarded him $64 million. 

 He was hired by Area Erectors, who was a contractor for Garbe Iron works which built the warehouse for Panduit Corp.   After a series of various claims and counter suits,  Bayer ultimately went to the jury solely against Panduit.

Area Erectors, which had settled the comp claim, was entitled to recover against part of the $64 million for the "substantial' benefits it had paid for medical expenses, vocational and temporary disability.  Area suspended making any further payments on 2013.

The issue in  as whether there was a claim  to attorney's fees as a percentage of unpaid future benefits.   Bayer's attorneys sought 25% of the fees they would have to pay but for the suspension of obligations.

The court found that section 5(b) was changed in 1957 to require employers to contribute the necessary costs of the their employees' recoveries against negligent third parties when the employer seeks reimbursement form the recovery.  As long as the amount of the judgment is not exhausted, Area Erectors will continue to be relieved from having to pay any recovery and reduce its ongoing obligations.  The court found the use of the phrase "gross amount of compensation" to include future medical.

The court found affirmed the circuit court that Area Erectors was obligated to pay attorney fees on future medical expenses incurred by Bayer.   

Attorney's fees limited in death claim

Claimant sustained a severe head injury when he fell from a ladder and died about two years later in a long-term care facility.  The medical experts disputed whether the cause of death was related to the accident.

The ALJ denied a request for cost for unreasonable termination of benefits and a request for a 25% attorney's fee based on contract.  The termination of benefits was not unreasonable because of the conflicting medical opinion about the  cause of death and the initial determination that the cause of death was due to end stage leukemia.  There was no statutory basis under .203  to contest termination of  TTD benefits after claimant  died because the only entitlement would have been death benefits.  The request for attorney's fees, representing nearly $146,000, was neither fair nor reasonable.  The Commission affirmed an award that capped fees as $10,000.  The ALJ considered the weekly benefit amount as "pre-ordained" and found the employer paid benefits up until claimant's death.

The parties struck a deal that the wife and two children outside the marriage would divide the death benefit proceeds 70%, 15% and 15%.  The ALJ found the agreement was not in the best interest of the children and awarded benefits evenly by one third based on the statutory language of 287.240 that benefits should be divided evenly.    The Commission affirmed.  Claimant had 4 children, including two children born outside of marriage.  The ALJ reports he was in a religion that believed in plural marriage. 

The Commission affirmed the award but also awarded burial expenses. The employer on appeal did not dispute liability for burial expenses. Bynun v SF Shannon Real Estate, etal, 2016 MO WCLR Lexis 29 (May 3 2016)

ALJ  Hart
Atty:  Moten
Experts:  Payne, Hogan

Attorney fee rejected 'in this case' for voluntarily paid disputed bills
Is an attorney entitled to a fee when disputed medical bills are paid after a comp claim is filed but before a hearing?   The court of appeals affirmed a denial of attorney's fees for the bills but relied upon the limited evidentiary record in the case.  Sterling v Mid America Car, 2014 MO App. Lexis 1441 (Dec. 23, 2014). 

The Commission adopted the opinion of the ALJ without a separate opinion.  The court noted that litigation undoubtedly led to securing payment of the medical bills.  Claimant incurred $38,462.07 in medical bills when he sought treatment for a burn injury and infection from hot slag.  The employer after several months paid the bills directly to the provider at a 50% discount and agreed to hold claimant harmless but did not pay any attorney's fee. 

An attorney is allowed a fee only to the extent allowed by the Commission regardless of an attorney-client contract.   The Commission may awarded attorney's fees under 287.260.1 and 8 C.S.R. 50-2.010(15)  for disputed medical bills.    "If the services of an attorney are found to be necessary in proceedings for compensation, the administrative law judge shall set a reasonable fee considering relevant factors which may include, but are not limited to, the nature, character and amount of services rendered, the amount in dispute, and the complexity of the case and may allow a lien on the compensation due to the claimant."

The court noted, however, the facts in the case not establish an abuse of discretion.   "The record before us does not establish, as a matter of law, that limiting Counsel's lien to 25% of the compensation award was so inadequate and so unreasonable as to constitute an abuse of discretion....
There is no evidence in the record, however, detailing Counsel's specific efforts to recover payment from Employer for Appellant's medical bills. Therefore, based upon the limited record before us and the amount of deference owed to the Commission, we cannot say that the denial of a 25% lien on the undiscounted medical bills amounted to an abuse of discretion." (emphasis added).

The court distinguished the case from Crowell v Hawkins, 68 S.W.3d 432 (Mo. App. 2001) which awarded fees and costs based on a confession of judgment when the employer originally voluntarily paid benefits before a hearing.  The award in Crowell was supported by statutory authority in 287.203 which allowed for attorney's fees when an employer had paid benefits and then terminated them. 

The court  chastises employers for trying to negotiate medical bills.   Medical bills are routinely discounted  for 'accepted' claims and for non-occupational injuries. Discounting is criticized  because it "manipulate the system and escape liability" and  "directly negotiating with and paying medical providers after initially denying liability, employers interfere with an attorney's ability to collect attorney's fees..."  

Missouri is not a fee-schedule state and charges for medical services vary widely. Missouri allows original bills to be awarded in disputed cases unless the employer can demonstrate personal liability has been extinguished.  Farmer-Cummings v Personnel Pool of Platte County, 110 S.W.3d 818 (Mo. 2003).  This rule creates numerous awards for the 'original' bills which workers can received widely different awards for the same medical services even after their own carrier has re-priced and paid any charges directly to the provider.   Sterling involves a novel situation in which personal liability has been extinguished but the attorney sought fees based payment on the original undiscounted charges.  The Commission affirmed a finding that the claimant had not established entitlement to fees from the original charges.  The court of appeals did not address the issue.

Attorney fee for MHRA violation not limited by proportionality to award

Claimant sued his employer for a Missouri  human rights violation when he stated that his brain tumor prevented him from operating a truck long distance and the employer would not alter his routes and wrote him up for disciplinary violations.  Claimant took the case twice up on appeal to fight over the amount of attorney’s fees to a prevailing party when the court cut the legal bill by 60 hours, found the issue was not complicated, and the requested fees were disproportionate to the award. Dewalt v Davidson Surface Air ED 101245(Sept. 23, 2014). The case goes back a third time to try again. 

Claimant’s attorney originally asserted that he should have been awarded more than $133,000 in fees for the $7,500 verdict because he was a prevailing party against the company owner although he did not prevail in a claim of punitive damages or against the company itself.   In the first appeal the case was remanded when the court did not fully explain why it limited the attorney’s fees about 10 times of the verdict.  The court noted the request for fees could also include the time preparing a request for fees to show the vigor of protecting public policy interests. 
Attorney fee on medical bills
When an employer pays medical bills on a denied case after an attorney enters his appearance can the attorney collect a fee on value of the undiscounted bills?  Not in this case.  Sterling v Mid America Car, 2014 Mo WCLR Lexis 87 (July 16, 2014). 

Claimant had a compensable accident in 2011 from a burn to his elbow and after the claim was filed the employer paid about $19,000 in re-priced medial bills and agreed to hold claimant harmless on any balance. Claimant was  "forced" to incur the expense to obtain an expert who concluded  the original charges of about $38,000 was reasonable to treat a burn to the elbow. 

The ALJ noted that an attorney's lien attaches with the filing of a claim based on 484.130 but the amount is still subject to review by the ALJ based on 287.260.  The ALJ denied any attorney's fees on the medical bills and limited to the award to undisputed TTD, PPD and disfigurement noting there was a failure of proof that any "significant" time to secure payment of the bills. 

The case did not embrace the "no jurisdiction" argument .  Glasby, supra.

Atty:   McKay, Stigall
Expert: Koprivica

No lump sum for attorney fees to estate
In a very unusual set of facts,  an attorney was awarded fees for a permanent total award and when the  attorney died his estate obtained an order from the Commission  to be paid a lump sum rather than periodic payments of attorney's fees.  The court of appeals reversed an award of lump sum benefits of $17,251  to the attorney's estate and found the Commission exceeded its authority.  Keaney v Treasurer of the State of Missouri, ED 10033 (Mo. App. 2013)  2013 MO App. Lexis 1475 (Dec. 17, 2013).

Appellant received payment of part of an attorney's fee  for 17 years.  The attorney died and his estate sought to commute the award pursuant to 287.260.  The court found the statute provides no authority to commute a final award in these circumstances.  The court noted that the Commission lost its authority when no appeal was taken pursuant to 287.495 and it was unreasonable to modify the award to pay an attorney when the award could not modified to benefit the employee.  Section 287.530, which allowed commutation payable to an employee or the employee's dependents, allowed no statutory authority to pay off the attorney.

Atty:  Reeves, Keaney

Court denies attorney's fee on disputed bills
Claimant seeks an attorney's fee on disputed medical bills which the employer initially refused to pay and then paid directly to the medical providers.  The parties dispute whether there was an agreement to pay the bills with a lien or not.  No written records were offered concerning what sort of agreement existed.  Some of the bills were "accepted" but remained unpaid due to funding delays by the City.

The employer questioned whether an accident had occurred but agreed to pay the bills after reviewing a videotape.    The claimant asserts the claim was denied with an incomplete investigation without even asking about the accident and the employer ignored recommendations for a referral from its own clinic.   The ALJ awarded an additional 35% against the employer after a 3-level surgery and PTD against the Fund. Claimant had a 17 year history of back injuries and she had  prior multiple settlements of 42.5% BAW.  She claims a new  need to lie down after surgery rendered her unemployable.

The ALJ found no "jurisdiction"  to award fees on bills when the bills were paid.  The Commission concluded the employer met its burden to show that personal liability was extinguished.   The ALJ noted that the claimant may have other remedies "outside comp" and the Commission made a point of noting that the claimant had not sought to recover fees under 287.560.  The Division rejected a personal comfort doctrine defense asserted on the day of the hearing.   Glasby v City of St. Louis, DOLIR 1-14-2014.
ALJ  Hart
Atty  Hoffman, Goeddel, Maurer
Treater:  Mirkin
Experts:  Lalk

Court considers 25% attorney's fee on Medicaid lien
In Lake v Levy, 2013 Mo App. Lexis 63 (January 15, 2013) the court reversed a judgment on the pleadings that denied claimant’s counsel of  25% of the $45,000 medicaid lien the employer agreed to pay directly as a condition of a settlement.

The court of appeals attempted to harmonize what appears to be conflicting statements in 287.266 regarding whether the state or the attorney obtains priority over the lien.  It reviewed the case on a narrow legal issue whether claimant’s counsel had a viable claim upon which relief could be granted and remanded without rendering a judgment to either party. The court construed a legislative intent to allow attorney’s fees to “incentivize” attorneys to recovery state debt.

“Section 287.266.7 grants priority to an attorney lien over the lien for the debt due the Department as to the proceeds of the workers' compensation award. It does not logically follow that in a case where there are insufficient funds in the award of medical expenses to pay the claimant's attorney lien in full and also the Department's Medicaid lien in full that this somehow means that the Department is paying a portion of the claimant's attorney fees. It only means that there were not enough funds to pay both liens, and the Department receives from the workers' compensation award only the amounts remaining after the claimant's attorney fee lien has been satisfied. The Department is not paying the attorney fee; it is merely receiving less than the total amount of its lien because there are insufficient funds to pay the higher priority lien in full and also pay the Department's lien in full. The amount of the debt owed to the Department that remains unpaid is still subject to collection by the Department through mechanisms otherwise available under the Medicaid program. See Section 473.398.”

The court notes the preferred procedural method to resolve the issue would have been an interpleader action to the disputed funds and the court asserted no position whether the state must return any payments made to them directly. The court of appeals identifies a computational error in the amount in dispute.

Attorney fee modified
The Commission modified an award for PPD  and attorney's fees due to an unexplained inconsistently between the amount requested and the amount awarded by the ALJ.  Zhukov v Treasurer of Mo, 2013 Mo WCLR Lexis 4 (1-10-13)
ALJ  Denigan

Claimant's counsel asserts fee for work after he was discharged
The Commission limited an award of attorney's fees to $875 based on a claim by the attorney that he spent 13 1/2 hours on the case even after he was discharged by his client.  Rader v Amerisafe, 2009 Mo WCLR 186.
ALJ:  Tilley
Atty:  Nielson

Thursday, September 17, 2009

Repetitive trauma - benefits denied

Cubital tunnel

Claimant worked for Triumph Foods.  He claims he would trim fat from meat and developed symptoms in his arm and hand.  He describes pain from his shoulder to his hand.   He was subsequently hired at La Costa. Jack v Triumph Foods , 2016 MO WCLR Lexis  ___ (April 15, 2016). 

Dr. Prostic regarded the work at Triumph to cause cubital tunnel syndrome and he recommended further studies.  When Dr. Prostic re-examined him after claimant worked for another employer her diagnosed bilateral carpal tunnel syndrome and recommended further studies. 

Dr. Wilkinson examined him and found no objective findings to explain his reports of pain in his arms and legs.  He assigned zero disability and found no need for further treatment. 

"Dr. Prostic does not convincingly explain how Claimant’s work for Employer could have caused the carpal tunnel condition he diagnosed in 2014 when Claimant did not have carpal tunnel in 2012, and Claimant had not worked for Employer since 2011."

Dr. Prostic identifies no findings of cubital tunnel exam on his second evaluation. 

ALJ  Miner
Experts:  Prostic, Wilkinson

No proof overhead activities aggravated cervical spinal disease
Claimant failed to prove overhead lifting and turning his head during the last 5 1/2 months of employment aggravated his prior cervical disc disease.  The ALJ noted the MRI studies were essentially identical.  "If Claimant's work from November 5, 2002 to April 21, 2003 "aggravated" or "progressed" the "degenerative changes" to any significant degree, why does the May 21, 2003 MRI not evidence such "aggravation" or "progression"? And perhaps equally importantly, why did Claimant tell all the health care providers that his symptoms were from the March 6, 2001 accident? The evidence and logic all lead to the conclusion that the there was no appreciable "aggravation" or "progression" of Claimant's underlying degenerative cervical spine changes due to the work."  The case involved a claim for SIF benefits after the employer paid a settlement.  Smith v Curators of the University of Missouri, 2014 MO WCLR Lexis 315 (Nov. 21, 2014).
ALJ Dierkes
Atty:  Allen, Herman
Experts:  Volarich

No proof welding duties were prevailing factor in cervical disc
Claimant failed to prove that "flipping" his welding helmet up to 500 times a day caused his cervical radiculopathy and subsequent two level fusion.  Claimant was a career welder and developed that work had caused his carpal and cubital tunnel syndrome.  Claimant's expert contends he needed revision surgery because the first fusion did not resolve his arm symptoms.
ALJ  Lane
Atty: Finley, Frayne
Experts: Howard, Volarich
Treater:  Garcia

No proof subluxation flows from repetitive climbing
Claimant in a Fund liability claim established that climbing activities may have aggravated her knee but they were not the prevailing factor and relied upon expert opinion that patellar tilt does not arise from over-use.  Smith v BF&B Enterprises, 2013 MoWCLR Lexis 154 (August 20 2013).
ALJ  Carlisle
Atty Hoener, Hudson
Experts:  Poetz, Cantrell

Repetitive trauma and prosthesis failure
Claimant required a replacement prosthesis but failed to establish the need arose from an accident at work or from repetitive trauma, according to a court of appeals decision which affirmed a previous denial of benefits. Robbins v Webco, 369 S.W.3d 787 (Mo. App. 2012).  Claimant alleged his prosthesis broke at work, he used it more at work, and his exposure at work was greater than away from work. His job involved regularly lifting heavy components.

The court of appeals noted the statute allows compensation for injury to prosthesis but claimant failed to prove he had an accident. No expert attributed the prosthesis failure to an accident. The prosthesis had reached the end of its expected life span. Claimant further asserted he had greater exposure at work than at home and as a result he had a repetitive trauma. The court noted based on its standard of review it would not disturb the Commission's finding that exposure was not greater at work based on conflicting testimony from the claimant in his deposition that he used his prosthesis "all the time" away from work and other testimony that he "rarely" used it. The court declined to reach the issue if 287.067.3 allowed such a cause of action for repetitive wear and tear to an unrelated prosthesis.

Atty: Alberhasty, Love, Corburn

Inconsistent clinical findings
The commission reversed an award for future medical care for carpal and cubital tunnel, finding the opinion of claimant's expert less credible because his diagnosis was not supported by EMG studies or some other clinical findings.  The case flowed from a 2003 accident with "liberal" construction.   The commission reduced claimant's award from 25% of the elbow  to 10% for a crush injury to the hand and found no future medical treatment flowed from the accident.   The ALJ improperly awarded PPD when claimant had not reached MMI.  Callahan v Booksource, 2012 Mo WCLR Lexis 120 (June 19, 2012)
ALJ  Ruth
Atty:  Burke, Cero
Experts:  Strecker, Schlafly

Dual claim of accident/occupational disease
The administrative law judge awarded disability finding claimant established two compensable claims to the same shoulder pleading alternate theories of accident and occupational disease. The Commission, however, reversed, finding only a compensable accident contrary to causation opinions of claimant's experts.  Woods v EFCO, 2012 Mo WCLR  (2-1-12)
ALJ  House
Atty:  Carlton, Johnson, Hammers
Expets: Hartman, Swaim

Short employment not work related
Claimant failed to demonstrate her work duties represented the prevailing factor in her carpal tunnel when she worked only about 6 weeks and reported right handed symptoms within 3 days.  The ALJ found the claimant "not credible."  She had additional risk factors associated with BMI and hepatitis.  The employer's expert indicated that obesity-related carpal tunnel might produce unilateral symptoms.  Evans v Manpower, 2012 MO WCLR 80.  (April 5, 2012)
ALJ Tilley
Atty:  Heckemeyer
Experts:  Brown, Schlafly

Claimant described worsening arm symptoms after 6 weeks on the job, but failed to persuade the Division that his carpal and cubital tunnel surgeries flowed from his work. Claimant identified a two-year history of symptoms, but a prior employer is not identified in the award. Butler v Faultless Linen, DOLIR 8-19-10.
ALJ: Lane
Atty: Thurmer, Evans
Experts: Schlafly, Byler
Treater: Bagwe

Lack of distinctive job feature defeats carpal tunnel
Pro se claimant worked as a secretary for 3 years until 1989, she quit work for unknown reasons, and she underwent carpal tunnel releases in 2004-2005. In a 2010 hearing she requested future medical and disability she failed to produce either medical evidence or lay testimony identifying a distinctive feature of her job causing carpal tunnel. Grant v Anheuser Busch, DOLIR 4-8-10.

Pregnancy defeats causation of carpal tunnel
HR employee failed to prove carpal tunnel arose from computer activities due to chronology of symptoms occurring late in pregnancy mostly after bedrest restrictions. Bosch v Reuters, DOLIR 2-4-10. Dr. Sudekum further testified that claimant's work activities represented a triggering activity but not a high risk.

Prior diagnosis defeats claim
Claimant failed to prove her 2001 dequervain's flowed from her employment, when she was diagnosed and treated for same condition with a previous employer. Claimant attempted to assert her symptoms became broader and worse. Treadwell v Lutheran Home for the Aged, DOLIR 1-14-10.

Fry station operator fails to prove carpal tunnel prevailing factor
Claimant's medical expert Dr. Poetz testified that the condition was "from work" but failed to clearly indicate work was the prevailing factor, resulting in a failure in claimant's burden of proof. Both experts agreed that claimant's body mass index and gender were also "factors" to explain the carpal tunnel onset shortly after claimant began employment. Judge Kohner concluded claimant had established a 30% disability, based on Dr. Poetz' finding and did not identify any disability assessment from employer's expert Dr. Brown. Candace Fry v. Christian Foods, DOLIR 11-4-09.

Telemarketer fails to prove work caused cubital tunnel syndrome
A pro se claimant failed to prove that her cubital tunnel syndrome arose from 4 years of part-time employment as a telemarketer when her expert lacked sufficient detail about her specific job duties despite an expert medical opinion from Dr. Paff that her condition arose from work. Dr. Corsolini concluded he could not identify a work-related diagnosis for claimant's non-specific pain and noted normal NCV studies. Claimant's prior medical expert Dr. Bennoch concluded he could not find a work-related condition either. Claimant's medical history was significant for progressive fibromyalgia. The case was an "old law" case, dating back to a 1997 onset. Claimant found subsequent employment working for a personal injury attorney after the telemarketing job. The Division noted motions to withdraw of multiple previous attorneys. Dobbs v MCI, DOLIR 10-22-09. Wilson.

Firefighter fails to prove work prevailing factor in back condition
A firefighter with 26 years experience and history of prior lumbar surgery established that he sustained further permanent partial disability from falling in a pond which required more therapy. He claimed, unsuccessfully, that he was permanently and totally disabled or he had an occupational disease as reflected by multiple reported back injuries. The court noted claimant had introduced evidence from an expert, Dr. Lichtenfeld, that his condition arose from work, but found it less persuasive than testimony from Dr. Chabot and Dr. Cantrell, who noted prior degenerative conditions. Claimant, in addition to receiving an award of 12 1/2% PPD from Judge Landolt, also received an award of nearly $12,000 from the second injury fund because of a prior shoulder problem, ringing in his ears, and a prostate problem he stated was industrially disabling because he had to take more bathroom breaks. The court noted the claimant had a duty to establish with a probability that his condition arose from work.The cases are James Andrews v City of Glendale, DOLIR 6-24-09. (sob 11-10-09, ed 93219)

Audio technician fails to prove work prevailing factor in carpal tunnel
Claimant alleged carpal tunnel, but failed to establish that work was the prevailing factor. Claimant asserted that he didn't "put it together" that work caused his condition until after his initial surgery. He had worked 17 years as an audio technician and that his job duties place his hands in cocked up positions to operate audio boards during business meetings. Claimant provided no history of occupational concerns when treated by Dr. Kitchens. Claimant provided a history that he played as a bass player, drove motorcycles, and had diabetes. ALJ Ottenad denied benefits based on the expert opinion of Dr. Ollinger who found claimant's diabetes and obesity (233 pounds) represented risk factors and that Dr. Ollinger had a better understanding of claimant's job duties.The case is Wolin v Swank Audio Visuals, affirmed 3-0 on 9-1-09.

Carpal tunnel from stuffing envelopes denied
Claimant failed to establish that stuffing envelopes and similar duties represented the prevailing factor in her development of carpal tunnel syndrome, due to other risk factors including diabetes, obesity, hypertension, and menopause, in a decision affirmed by the Commission, McCarthy v Concentra Health Care, DOLIR 10-6-09. Commissioner Hickey authored an extensive dissent that risk factors alone do not defeat causation, in the absence of evidence that the claimant had some clinical evidence of the condition from such risk factors. He further concluded the statute under strict construction has abrogated compensation for occupational disease under the 2005 amendments back to pre-1931 law, due to repeated statutory reference only to "injury", in what appears to be almost an amicus curiae for the next post-Mo Alliance challenge.

Carpal tunnel claim denied

A forklift operator failed to prove his job duties caused carpal tunnel in his non-dominant left hand when he described an insidious onset of symptoms to his treating physicians and had other risk factors of severe arthritis and congenital abnormalities. Enderlee v Legget & Platt, 2012 Mo. WCLR Lexis 101 (May 2, 2012). Claimant's expert was not a hand specialist and he attributed the condition to operating a forklift, depressing an elevator button about 25 times a day and "probable" vibration. The Commission affirmed 2-1.
ALJ Tilley
Atty: Weiss, Voigt
Experts, Woiteshek, Sudekum

laimant failed to prove that labeling, scanning over 600 seats per shift was a prevailing factor to her bilateral carpal and cubital tunnel syndrome. Both experts agreed claimant performed repetitive duties but Dr. Crandall concluded such activities were not sufficiently hand intensive to satisfy OSHA criteria. Judge Kohner criticized both Drs. Crandall and Schlafly for not citing scientific studies addressing causation of carpal tunnel and considered the OSHA criteria vague. The parties had stipulated to disability and the employer asserted a "credit" of nearly $12,000 and submitted the case solely on causation. The Commission affirmed 2-1, with a dissent criticizing the job video as an inaccurate representation. The case is Gordon v Lear Corporation, 2009 MO WCLR Lexis 77.

No carpal tunnel from driving bus
Claimant, 63, failed to prove operating a bus for 12 years represented the cause of his bilateral carpal tunnel syndrome. Claimant had a history of diabetes and the employer expert, Dr. Crandall, testified that the activity was not of such intensity to cause the disease. The case is Noman v Bistate Development, 2009 Mo. WCLR Lexis 130.

Nurse fails to prove work prevailing factor in rotator cuff tear.
A registered nurse failed to prove a repetitive trauma injury to her shoulder in 2006 caused a rotator cuff tear, based on testimony from Dr. Stuckmeyer, due to lack of credibility from inconsistent medical histories. Claimant stated since she was sore after work she thought that work caused her condition, but medical records did not identify a work origin. Brooks v Research Medical Center, 2009 Mo WCLR Lexis 66.

Nurse fails to prove work prevailing factor in herniated discs.
A 48 year old certified nurse's aide with prior symptoms failed to prove her repetitive job activities caused her herniated disc.  Thomas v Pemiscot County, 2014 MO WCLR Lexis 26 (Feb. 26, 2014).
ALJ Kasten
Atty:  Turnbow
Experts:  Volarich, Robson, England, Dolan

Delay in treatment and calcific findings defeat causation of rotator cuff tear
A 43 year old city trash truck operator failed to convince a judge that she developed repetitive trauma and rotator cuff tear to her shoulder, from operating a lift lever in a trash truck for four months in 2004, according to a recent decision affirmed unanimously by the commission. The case is Lytle v City of St. Louis, DOLIR 7-25-11. Claimant postponed treatment for nearly two years and a 2006 arthrogram did not identify a tear subsequently repaired in 2007. Calcification suggested other traumatic origin, according to the employer's expert.  affirmed without opinion.   2012 Mo. App. Lexis 375 (3-20-12). 

ALJ: Tackes
Atty: Hoener, Goeddel
Experts: Schlafly, Kostman
Treater: Perry, Kinsella

No carpal tunnel from dispatching
A police dispatcher employed about 6 years failed to prove his dispatching duties caused his carpal and cubital tunnel syndrome, in a decision affirmed 2-1 by the Commission in Martin v City of St. Ann, 2010 Mo WCLR Lexis 22.  The dissenting commissioner concluded that ALJ Percy unduly focused only on claimant's keyboarding activities and found Dr. Volarich had a better understanding of dispatching duties, noting that Dr. Volarich had found dispatching duties as a cause of carpal tunnel in previous cases. Dr. Volarich did not find claimant's motorcycle activities defeated causation.

No radial tunnel syndrome from housekeeping
A one year employee failed to establish she had radial tunnel syndrome flowing from performing job duties.  The medical experts disagreed regarding the diagnosis of radial tunnel syndrome and the ALJ found the claimant's expert relied upon an inaccurate job description to find causation.    Patterson v Aramark Family Services, 4-11-2013, 2013 Mo WCLR Lexis 69. 
ALJ  Landolt
Atty: Weigley, Amsler
Experts:  Sudekum, Rotman

Mechanic work not prevailing factor to total knee
Claimant worked 27 years as a mechanic standing on concrete, climbing platforms, etc. and underwent a chondroplasty of the knee and was told he may need a total knee replacement. The employer successfully defended the case, when work was merely a triggering factor and not a substantial factor in the cause of the condition. Claimant's expert Dr. Musich relied upon an incomplete medical history. ALJ Boresi found employer expert Dr. Kostman more persuasive, noting the impact of a prior surgery, a valgum deformity, and findings of arthritis in the opposite knee, and lack of history of bending, squatting or similar activities.The case was affirmed 3-0 by the Commission,  Portell v GKN Aerospace, 2009 Mo WCLR Lexis 106.

Chrysler employee failed to prove worked prevailing factor in back condition
In a similar claim, claimant alleged occupational disease resulting in a herniated disc from working at Chrysler since 1995. ALJ Hart adopted Dr. Chabot's conclusion that claimant's condition arose from progressive degeneration, noting the absence of specific accidents and a reported worsening of symptoms while claimant was off work for a heart condition. The Commission affirmed the case 2-1, Wallace v Chrysler, 2009 MO WCLR Lexis 125.

Cleaning crew employee failed to prove work as prevailing factor in back condition
Claimant failed to demonstrate performing various cleaning duties and emptying trash for several years produced bulging discs and piriformis syndrome, as asserted by her expert.  The ALJ denied benefits noting symptoms were more consistent with degenerative disc disease while made her not ideally suited for the job.  A dissenting commissioner indicated that claimant's subjective symptoms were persuasive despite the lack of objective findings on any MRI studies.  Claimant was noted with significant psychiatric comorbidities related experiences in the Bosnian war.  Kadric v Centaur Building Services, DOLIR (incorrectly dated by the Commission as "7"-28-2013), affirmed without opinion 2014 MO App Lexis 266 (March 11, 2014). 
ALJ Wenman
Atty:  Niesen, Mohan
Experts:  Musich, Lange

Two weeks back on job is not new repetitive trauma claim
The Commission reversed an award of benefits issued by Judge Lane, finding a misapplication of the old "aggravating" factor instead of the new statutory "prevailing" factor standard to a claimant seeking further surgery for a frozen shoulder, when she reported a new injury right after returning to work from a prior clavicle surgery. Claimant failed to prove increased shoulder pain after dumping trash was the prevailing cause of any need for ongoing medical treatment, when she had been back to work less than two weeks, had ongoing shoulder symptoms, used the shoulder in a guarded fashion, and expert testimony attributed her current diagnosis of frozen shoulder flowing from a previous clavicle surgery based on findings of callus formation. Claimant had retained Dr. Sedgwick who identified several possible causes and concluded surgery would only decisively determine the cause. The Commission considered Dr. Sedgwick's conclusions less persuasive. The 2-1 holding cites Gordon and the importance of specific radiological or operative findings to differentiate prevailing and aggravating factors while applying the new definition of accident. The case is Huskic v Mo Baptist, 2009 MO WCLR Lexis 115.

Claimant driver fails to prove causation - brief employment duration
Claimant failed to prove his work duties operating a truck briefly caused his myofascial shoulder pain, based on defense opinion from Dr. Cantrell. Claimant stated he experience symptoms within a week, and was fired shortly after reporting problems. The employer stated the truck was one-year old and found no defects in the seat, as alleged by the claimant.  v Arom Inc., 2009 MO WCLR Lexis 72.

Machine operator failed to show rotator cuff work related
In Suljo Cuskic v True Mfg., 1009 MO WCLR Lexis 55., a Bosnian claimant failed to demonstrate that job duties as machine operator caused his rotator cuff tears from repetitive trauma, based on testimony from Dr. Rotman. Dr. Rotman originally found the conditions work related, but reversed his opinion after reviewing a videotape depiction. The claimant asserted he spent 70% of his time doing over-head work, contrary to the video. Commissioner Hickey concluded that the videotape was not an accurate representation of claimant’s job activities regarding the scope and pace of his duties, and suggested ALJGorman may have required too high of a burden of proof regarding causation. (Oral arguments 11-10-09, ED 92944).

Lifting bags - benefits denied
Claimant failed to prove her repetitive job duties in a mail room for a few months lifting heavy bags in 2002 was a substantial factor in her disputed C4-c7 fusion performed in 2005 by Dr. Hadi. Claimant had undergone a previous cervical fusion, and continued to treat periodically for neck symptoms a few months leading up to her employment. Her previous medical conditions included fibromyalgia and prior to her employment she had applied for social security in part because of persistent neck symptoms.

ALJ Mahon awarded claimant 15% disability for her low back, diagnosed as spondylosis and/or protrusion, and treated with ESI, based on a 15% rating furnished by Dr. Koprivica. ALJ Mahon observed some of the experts were not fully informed about claimant's medical history. Dr. Koprivica opined that claimant had segment degeneration as a result of the prior surgery. A dissenting Commissioner concluded claimant had established her neck condition was a compensable injury. The case is Brown v Mo Department of Corrections, DOLIR 5-18-10.
Attorneys: Plattner, Harris, Rowe
Experts: Koprivica, Batchu
Treater: Hadi
ALJ: Mahon

Tuesday, September 15, 2009

future medical cases - causation

ortho but not psych future medical
Claimant described worsening depression after he slipped and fell at work but he did not obtain any psychiatric treatment and did not persuade the ALJ to award future medical for psychiatric conditions.  The ALJ noted that the claimant worked as a lineman for 30 years and claims he slipped and fell while disconnecting electrical services and continued to report back pain.  The ALJ awarded PPD and open medical for claimant's back condition. He noted it was "less important" that the treating physician had difficulty reaching any diagnosis and questioned if there was any organic cause.  Claimant had permanent restrictions based on an FCE and medication impaired his  capacity to drive. 

 Treadway v Pemiscot Dunklin Electric Corp., 2012 Mo. WCLR Lexis 54 (3-15-12).  A dissent would have awarded PTD benefits.
ALJ  Robbins
Atty:  Christianson, Page, Johnson
Experts:  Lichtenfeld, Stillings, Lalk, Jarvis, Blaine
Treater:  Bowen

home modification
The parties stipulated claimant was PTD and entitled to future medical resulting from a catastrophic injury in 2002 when claimant fell off a platform and was rendered paraplegic.  The employee was awarded the cost of van modifications, home cleaning and home modification "once the claimant finds a home suspectible to appropriate modification."  His request for additional services such as the appointment of a nurse case manager, a fitness program, home nursing care and front-load washer and dryer were not placed into question at the hearing and the ALJ did not err ruling on those specific items.  The Commission found 287.140 applied to ordering reimbursement for past benefits but did not contemplate prospective waiver of the right to designate a provider.  In this case the employer never yielded its right to direct treatment, but it was subject to penalties for a lapse for several months in paying prescription bills.  There was an unexplained gap in the adjustor's notes for 8 months.  The commission noted that claimant had alienated some physicians and engaged in unacceptable behavior.  The employer was also criticized had contributed to difficult issues with regard to "physician selection or relationship."  Deane v Elder Custom Homes, 2012 Mo WCLR Lexis 20 (Feb. 16, 2012).
ALJ  Fischer
Attorney:  Allen

over the counter meds
Claimant's periodic needs for over the counter medications supported an award for open medical, even though treatment might benefit pre-existing conditions, according to the Commission in a 2-1 decision which reversed a denial of open medical.  The ALJ awarded PPD instead of PTD and found claims of a hernia not related due to lack of medical documentation for about a year.  Hampton v Champion Precast, 2012 MoWCLR Lexis 26 (2-24-12)
ALJ Kohner
Atty:  Barbour
Experts:  England, Abram; Dolan; Meyers, Kitchens, Howard, Pruett, Ordell

Claimant failed to establish with reasonable probability that proposed treatment for his thumb flowed from an altercation with a patient, based on his osteoarthritic condition. The dissenting commissioner found claimant's testimony persuasive that the accident "made symptomatic" claimant's condition. Ray v Cooperative Attendant Services, DOLIR 1-6-10.

Claimant established that a work injury in 2005 aggravated tri-compartmental arthritis resulting in the need for future medical treatment and eventually a knee replacement.  The employer's doctor indicated the need for treatment predominantly flowed from claimant's body habitus and degenerative changes.  Claimant had sustained a torn meniscus in his work injury and the case was tried solely on future medical.
 Winnington v Mo Dept. of Transportation, 2012 Mo WCLR 10 (2-1-12). 
Atty:  Webster, Wesley
ALJ  Fisher
Experts: Koprivica,  Fevurly

neck surgery
Claimant underwent a 2 level cervical fusion following a neck injury at work, but failed to prove the need for surgery flowed from the accident. Claimant underwent unauthorized care from Dr. Feinberg and Dr. Kennedy. "The claimant was free to obtain this treatment on her own and at her own expense under Section 287.140. Unauthorized treatment, however, does not automatically translate into a finding that the treatment was reasonable, necessary, or even related to her injury. " Dr. Kennedy performed a fusion in 2005 at c4-c6. Judge Ruth noted that "scanning did not show any evidence of neural involvement nor nerve root compression, and his own neurologic examination did not reveal any findings consistent with neural impingement. The claimant did not describe to him any symptoms consistent with a cervical radiculopathy." Dr. Feinberg referred claimant to Dr. Kennedy, and opined that "cervical surgery will, in the long term, be considered a failure." The judge noted that Dr. Feinberg was also a lawyer and has a business interest with Dr. Kennedy in an imaging center. Dr. Lange and Dr. Kitchens had advised against the procedure. Claimant's lumbar MRI from July 21, 2005, revealed stenosis that occurred over time and did not result from an acute injury. "Dr. Kennedy offered the claimant surgery for a diagnosis of cervical instability, a condition that had not previously been diagnosed." Two previous evaluations, one by Dr. Lange, an orthopedic spine surgeon, and one by Dr. Kitchen, a neurosurgeon, had found no cervical instability or need for cervical surgery. I find the opinions of Dr. Lange and Dr. Kitchen to be more credible that than of Dr. Kennedy and Dr. Feinberg. "I note that although Dr. Feinberg supports Dr. Kennedy’s surgical intervention, Dr. Feinberg’s testimony that the claimant had a cervical radiculopathy is inconsistent with Dr. Kennedy’s testimony that the claimant did not have any clinical or diagnostic evidence of a radiculopathy. "
The case is Hassenbeck v Bauer Foods, DOLIR 9-15-09. In the similar recent case, Payne v Thompson Sales Co., DOLIR 9-17-09, the comission affirmed a denial of benefits on causation and notice that the need for a two-level fusion flowed from an accident 6 weeks earlier.

Future Medical Awarded when treatment flows in part from work

In Greer v Sysco Food Services, ED 101389 (Nov. 18, 2014) the employer argued the Commission erred in awarding the costs of a second surgery because the claimant did not prove the surgery was necessary.  The court noted that an injured worker does not have to introduce "specific evidence of necessity" and satisfied his burden to show bills and records that a second surgery was reasonably related and flowed from the accident. 

A claimant with end-stage arthritis received an award from open medical for his knee when a judge found his need for treatment flowed in part from his work injury, following Conrad v Jack Cooper Transport, WD 69407, (Mo. App. 10-21-08). Claimant states he tripped and fell at work and developed swelling, and required a meniscus repair after his accident. The employer's expert contends claimant's tear arose from pre-existing end-stage arthritis. Claimant states he was a Vietnam veteran and actively participated in sports, despite prior conditions that included a prior arthrotomy for a meniscus tear, including former tibia plateau fracture, and attenuated ACL. The case is Brandt v St. Louis County Government, DOLIR 4-3-09.

Over-use syndrome
ALJ Wenman found claimant permanently and totally disabled as a result of a August 2002 accident, and found claimant's altered gait from his left leg caused a right knee injury and awarded past and future medical treatment. The Commission modified the award, and did not find the knee complaints flowed as a natural and probable consequence from altered gait as claimant provided a specific history of a subsequent 2005 accident that he stepped too quickly down a curb. Claimant had reported some knee pain in 2004 about two years after the primary injury, before the curb event occurred. Poss v Lohr Distributing, DOLIR 1-26-10.

Natural and probable consequences

In a case in which it seemed anything that could go medically wrong, would go wrong, the Commission has now affirmed a permanent total award to a 29-year old claimant who tore his meniscus and developed RSD and depression in which medically costs since the 1999 accident exceeded over half a million dollars. The case is Brashears v Pandrol Jackson Technologies, DOLIR 2-18-10.

Claimant worked as a railroad truck inspector and fell off of a truck ladder injuring his left knee, resulting in a torn meniscus. The employee last worked in 2002, when he was allowed to work from his home computer by his employer. Claimant developed complications of RSD, underwent a pump implant, and treated with Dr. MacKinnon for several surgeries for neuropathic leg pain. He states he became depressed and started using a wheelchair in 2001, and underwent nearly 3 dozen ECT treatments. He reported that medications and RSD caused fractures to his feet and jaw.

Administrative Law Judge Robbins "emphatically as possible" rejected findings of Dr. Stillings and Dr. Graham, relied upon by the employer, to terminate benefits in 2004 as inconsistent with positions of previous authorized treating physicians including Dr. Giuffra and Dr. Swarm regarding the findings of RSD and the ongoing need for psychiatric care. Dr. Graham's lack of board certification is noted. Claimant had a previous surgery to the same knee prior to his accident.

Claimant was found credible, in part, due to his "willingness to undergo extensive medical treatment." The judge noted claimant brought a blue towel with him to wipe sweat, which he stated was caused by pain. Claimant appeared drowsy at trial and reported that since the accident he had gained 65 pounds. Claimant is a high school graduate continues to live with his parents in the town of Morehouse, Missouri.

The award included PTD, past and future medical, 4 years of unpaid TTD from 2004 to 2008, and mileage of more than $23,000.