Thursday, February 5, 2009

Recent decisions bode winter of discontent for Missouri employers


Nurse awarded 17 1/2% left hand, 15% right hand for carpal tunnel with mild pre-op EMG findings, causation found based on history from "pulling and pushing files in a file cabinet, manually pumping blood pressure cuffs, pushing carts of laundry, lifting bags of laundry, keyboarding, giving injections, and performing ear lavage," Commission modified open medical award from medication only to all future medical. Brennell v Patients First, DOLIR 8-13-09 (Ruth)

Dock worker awarded benefits in temporary award for carpal tunnel and epicondylitis, where employer expert Dr. Brown relied upon video tape that was deemed an inaccurate representation of duties representing slower duties later in morning after dock was already loaded and when claimant alleges he worked more slowly due to wet ground. Lemmon v Copp, DOLIR 2-3-09 (Landolt)

Fire protection specialist who tested drains, removed padlocks, and removed chains established that work was "vigorous and repetitive", and awarded 20% BAW for carpal tunnel. The judge rejected the employer’s defense that the duties were not hand intensive, and concluded the employer’s expert relied upon videotape with incomplete representation of claimant’s duties. Cochran v Honeywell DOLIR 2-2-09 (Siedlik)

Residential care worker employed 2 years established her carpal tunnel arose from work related duties that involved preparing meals and doing laundry and cleaning. The judge found the description relied upon by employer expert was inaccurate. The Commission in a 2-1 vote rejected a claim of future medical, noting the absence of recent treatment. Fisher v Bristol Care, DOLIR 2-2-09 (Miner)

Clerical worker employed 5 years awarded disability for carpal tunnel syndrome, rejecting defense from employer retained expert that hand duties not sufficiently intensive. Marcinkiewicz v Dave Sinclair Lincoln Mercury, DOLIR 1-28-09 (Vacca)

A truck driver with a prior neck fusion was awarded future medical benefits in a temporary award for a new neck fusion when he claims rough roadway jarred his neck based on his testimony that road was rough, contrary to photographs of the road produced by the employer. The judge sharply criticized that the adjustor had "meddled" when the treating physician Dr. Wilkey originally supported causation and changed his opinion, and that treating physician was "confused" and over-relied upon picture of roadway that was not a picture where claimant stated that the accident occurred. The employee's expert Dr. Kennedy found the reported torque of neck and acute changes in an EMG study more relevant than alleged road wear.
Harvath v UPS 2-2-09 (Vacca)

Benefits denied. Claimant failed to prove accident in course of employment when he was going home from party, based on an earlier admission that he was going home contary to testimony that he was traveling to work-related destination. Chokota v Independent Photo Art Supply, DOLIR 1-16-09 (Magruder)
Benefits denied. Clalmant failed to prove accident arose from fatigue after working double shift, rejecting application of Snowbarger. Storie v American Systems, DOLIR 1-16-09 (Kasten)

Claimant dies after an accident and has no surviving spouse or children. Claimant lived with mother 6 months before the accident and sent her a $50 check to pay for cell phone. The evidence of a periodic payment did not support the mother's claim of dependency. Vice v Advantage Waste Service, DOLIR 2-2-09 (Mahon)

Claimant was awarded 14% PPD and found to be statutory employee when injured removing a tire from the truck of a customer. The judge criticized the employer for asserting its staff were all independent contractors and attempting to "evade" legal obligations and expenses. Burnfin v DJ&J Driveaway, DOLIR 1-16-09 (Allen)

Claimant was awarded medical bills against the second injury fund based on a finding that a sawmill job with no comp insurance was an employment subject to the Act under "relative nature of work test," but claimant was not entitled to pierce the veil of the 80% corporate owner where lack of insurance did not contribute itself to injury of tree falling on a claimant and causing head and neck injuries. Second Injury Fund was denied a right to a "credit" of $25,000 settlement against the putative employer, as the employer is not entitled to a credit under .270 and the Fund cannot assert defenses in an uninsured employer claim that would not be available to the employer. Goodson v GB Logging, DOLIR 1-29-09 (Kasten).

Claimant was awarded 64% disability for an ankle injury when he fell from scaffolding, and an award for open medical that included massage therapy. Claimant described that massages several times a week made him feel better, including the 248 sessions he received over three years from his female massage therapist had never been ordered by a doctor. The treating physician, Dr. Burns, originally concluded such treatment was not necessary but conceded his position may need "rethinking." A pain management specialist retained by the employer dismissed the need for long-term massages as "touchy-feely" care. The judge accepted that such treatment at a minimum relieved claimant's symptoms and might reduce his swelling and daily use of several narcotics. The judge did not award the past medical bills related to the unauthorized care. Claimant, 27, states no one would hire him after the accident and he runs his own construction business and is a volunteer fire fighter. Castile v Sander Siding, DOLIR 1-27-09 (Robbins).

On remand from the court of appeals, the Commission ordered future medical care including total knee replacement because the need for treatment "flowed" in part from the original accident, despite prior degenerative conditions. The court of appeals found Dr. Jones' conclusion that claimant's meniscus tear was not a substantial factor in the need for future medical care inconsistent with earlier reports and not credible when he initially indicated that the work accident significantly aggravated his condition and should be considered part of a "persistent claim." Conrad v Jack Cooper Transport, DOLIR 2-13-09.

Claimant awarded 65% PPD for back injury after fall from ladder and entire medical charges awarded, where employer offered no evidence that claimant would not be responsible when Medicaid repriced charges. Rector v Gary’s Heating & Cooling, DOLIR 1-23-09. (Fischer)

Benefits denied when claimant slipped and fell on dock, died from unrelated cancer, and disability opinion from claimant’s expert deemed speculative as to what minimum disability claimant ‘would have had’ if he proceeded with proposed surgery. Cantrell v Baldwin Transporation, DOLIR 1-27-09 (Mahon)

46 year old CNA awarded PTD after he injured back moving large patient and had ongoing symptoms from post-laminectomy syndrome after 2 surgeries, claimant testified he was going to get a morphine pump and needed to lie down during the day. The employer expert was criticized for waiting 2 years to render a disability opinion after his exam. Boler v Citizens Memorial Healthcare Foundation, DOLIR 1-23-09 (Zerrer)

Claimant awarded PTD after auto accident caused multiple fractures, claimant now must lie down 5-6 times a day. Judge criticizes AMA ratings. Employer argument that claimant’s PTD is not from accident alone but in part due to claimant’s old prior felony convictions rejected as "without merit". Steel v Air Serve Group, DOLIR 1-27-09 (Cain)

SIF PTD claim rejected, where phlebotomist sprayed with blood who developed hep c and nervous breakdown, failed to prove psychological condition prior to employment was sufficiently disabling to qualify for statutory benefits. Madison v NABI, DOLIR 1-27-09 (Mahon)