Friday, March 27, 2009

Claimant Wins PTD Odd Lot Case

It hurts too much to work, is the theme of the latest PTD award from Illinois, affirming life-time benefits to a young, highly-educated claimant who strained his back nearly nine years ago after working only briefly for his employer. The case is Ameritech Services Inc. v. Ill.Workers’ Compensation, Comn,No. 1-08-1412WC, (1st Dist. 3-17-09).1

Claimant reported chronic pain complaints after he hurt his back carrying equipment down steps from his apartment to his car, working as a commissioned sales person based out of his home, a job that he held for about two months. Claimant was initially diagnosed with a back strain with findings of degenerative bulging disc disease that the radiologist considered "probably chronic." Claimant had a subsequent auto accident involving his back which he states did not change his condition. Dr. Pahwa found no objective findings to support his continued complaints of pain and his reported need to lie down and change positions. Claimant later rejected proposals by Dr. Haak and Dr. Giersaan for interbody fusion. Claimant received social security disability benefits and never returned to work.

The arbitrator rejected the employer’s position whether or not it had offered claimant work within the medical restrictions. It is not clear how the offer was made. The award included 215 weeks of TTD benefits, leading up to a PTD award for a claimant about 30 years old. What is also striking is following the accident claimant obtained an M.B.A., although his vocational expert concluded despite his many transferrable job skills he was vocationally untouchable.


Pre-employment Drug Test Outside Mo Derails Mo PTD Claim

The Commission lacked jurisdiction based on 287.110 to determine a claim of permanent and total disability involving a back surgery with affective disorder, when the last act necessary to complete the contract of employment occurred when claimant obtained a pre-employment drug test outside the state of Missouri. The case is Roberts v Leggett & Platt, DOLIR 3-25-09.1

The case involved two accidents that occurred in April 2002 jumping down about 4 feet and in June 2002 from playing golf with a supervisor. Claimant underwent surgery in 2003 at L4-L5, and had injections at L5-S1. Claimant states his previous depression and bipolar disorder were controlled by medication did not affect his sales position, but now he needs prescription medication again. He had a prior L5-S1 disc surgery resulting in an earlier worker's compensation settlement, but he made a full recovery and bragged about his ability to work 80 hour weeks and obtain good golf score. Claimant reports he still depended on over the counter medication, that he has gained 80 pounds, that he had to take regular naps, and looked too tired and sad that any employer would be reluctant to hire him. Dr. Berkin and Tim Lalk testified for the employee. Dr. Lennard, for the employer, testified claimant had permanent 25 pound lifting restrictions and attributed 10% disability to the accident as a result of the surgery.

Claimant lived in Arkansas and interviewed in Poplar Bluff, and was paid for two weeks of training in Carthage, Mo. Claimant accepted a job offer on the phone while at his home in Arkansas. The employer stipulated that the accident and employment occurred in Missouri, even though claimant testified his principle place of employment involved selling and repairing parts in New England, and that he was injured in Massachusetts, not Missouri. The case demonstrates that the Commission may independently examine jurisdiction, and that jurisdiction cannot be waived. Judge Wilson noted that jurisdiction was never asserted by U.S. Fidelity as a defense in either the employer’s answer nor as a contested issue in the hearing itself.


Wednesday, March 25, 2009

Second Carpal Tunnel claim denied without evidence of "new" condition

Claimant Bonita1 alleged she developed carpal tunnel in two claims: in 2004 when she discussed surgery with a doctor and in 2007 when her condition gradual worsened. The ALJ addressed found the 2007 claim barred based on the statute of limitations. The Commission modified the award and found claimant failed to establish a “new” condition to support a second claim but expressly did not adopt the ALJ discussion about statute of limitations for the 2004 case.2 The ALJ discussed different standards regarding statute of limitations since the 2005 changes, and concluded the 2005 changes begins the statute even without loss of time but that pre-2005 it was not clear claimant had a "disability" in 2004 with no time loss and or surgery, despite conservative care and discussion of surgical options.
1. Bonita v US Airways Group, DOLIR 3-25-09. Oral arguments occurred 11-12-09 (WD 70840).
2. See Allcorn v Tap Enterprises, No. 29311 (Mo. App. SD 2-26-09), (excusing delayed notice of a claim)

Friday, March 20, 2009

No New Survivor Claims on Cases Closed Before Schoemehl

The court of appeals once again addresses attempts to add survivors after a claimant has a final award, and then dies. In Lawson, Tyson, and Graves v Treasurer of the St. of Mo, the southern district in a judicial hat trick denies three cases at once filed by the same attorney. The original motions in this case to set aside termination of benefits have worked their way through the appeal system, and had been originally filed in January 2007, two days after the Schoemehl decision.

None of the cases had been appealed nor had any determination been made whether the employees had any dependents. The Commission had terminated benefits upon death of the original claimants. The cases were not pending between the window when Schoemehl was decided on January 9, 2007 and June 26, 2006, the effective dates of the new amendments, abrogating Scheomehl’s application.

The court found the Commission dismissed the motions properly based on lack of jurisdiction, following the western district’s decision in Bennett v Treasurer of Mo., 271 S.W.3d 49 (Mo. App. WD 2008).

Claimant’s counsel had raised an argument, that is briefly discussed in fn. 3, that the Commission lacked authority to terminate benefits based on a change of condition when the change of condition is not casually related to their work injuries.

SD 28541, 28543 (Mo. App. 3-19-09)

Wednesday, March 18, 2009

Payment in Full Defense with Medicaid Claimants

When is a payment made in full, when it has not been paid in full? Medical bills every day are reduced, repriced or adjusted from original charges. An employer must introduce evidence to show the claimant’s liability is limited to the repriced or adjusted medicaid fees.

The employer has the burden to show a claimant owes nothing further on medical bills that have been discounted or repriced. 1 Farmer-Cummings involved a claim that the employer was not entitled to a credit for a bill that was adjusted and asserted the employer owed the full amount without evidence that the liability had been extinguished. In cases of private insurance, some providers could arguably reconsider "write-offs" and elect to pursue further reimbursement. None of the reported Commission cases have directly addressed the reason under Farmer-Cummings why an employer must prove lack of further liability of medicaid paid bills, when as a matter of law the provider cannot pursue further benefits.2

Recent Commission decisions make no exception for medicaid: adjusted bills require evidence of liability limited to the repriced amount .3 Similarly, a hold harmless agreement does not absolve an employer from liability.4 Allowing claimant to testify they owe nothing has had mixed results.5 None of the cases have dealt directly with issues of judicial notice of the federal rule.6

In the cases of medicaid-bills, submission of a medicaid invoice alone should suffice to prove lack of liability, contrary to some recent decisions. To require testimony or affidavits from every medical provider can represent substantial costs. Cases such as Eichelberger7 express outrage that employers may punt medical liability, force a claimant to go on public-welfare medical, and then seek protection of reduced rates when providers take medicaid-reduced rates. Giving awards to claimants to protect them in case a doctor "might" pursue them for further charges contrary to the provider's own medicaid agreements serves no public purpose and furnishes a windfall as the bill has already been paid in full.

1. Farmer-Cummings v Personnel Pool of Platte County, 110 S.W.3d 818, 822-823 (Mo. Banc. 2003). See also Martin v Mid America Farm Lines, Inc., 769 S.W.2d 105 (Mo. Banc 1989), Jennings v Station Casino, DOLIR 4-10-07.
2. 42 CFR 447.17, Evanston Hosp. V. Hauck, 1 F. 3d 540, 542 (7th Circ. 1993).

3. Rector v Gary’s Heating, DOLIR 1-23-09 (medicaid bill), see also Wyatt v Blair Packaging, DOLIR 3-12-09 (no award for bills discharged in bankruptcy, no reduction for other adjusted charges), Dunn v Jordan Concrete, DOLIR 8-11-06 (EOB insufficient).
4. Bea v Irvinbilt Co., DOLIR 1-16-08.
5 Allen v Luthor Manor, DOLIR 7-24-04 (testimony allowed) Eichelberger v Gateway Preventatitve Dental Group, DOLIR 7-22-05 (testimony rejected)
6. Lattimore v Washington University, DOLIR 4-15-04, Jennings v Station Casino, DOLIR 4-10-07, Brock v Broadway Ford Sales 10-29-07

7. Eichelberger v Gateway Preventative Dental Group, DOLIR 7-22-05.


The Court of Appeals in Banks v Steelman, ED 91699 (Mo. App. 3-17-09)1 concluded the second injury fund is entitled to subrogation rights in a third party net recovery involving a motor vehicle accident, despite the lack of statutory language granting such rights.
Claimant received an award for permanent and total disability benefits, in addition to a $100,000 settlement in a third party case. The Commission denied the second injury fund's claim of subrogation. It does not address the bigger issue when both the employer and the second injury fund may be competing to recover subrogation.

Following Cole v Morrow, 409 S.W.2d 668 (Mo. App. 1966) the Eastern District reversed the Commission and was "constrained" to follow the earlier case that found a right to subrogation arising from common law even though it was not expressly granted in the statute. Judge Mooney in a concurring opinon concluded that the SIF should have pursued any subrogation recovery in a circuit court of equity as the Commission could only exercise authority granted by statute.

1Banks v Steelman, Custodian of SIF


No one disputed that the second injury fund has an equitable right to subrogation that does not exist anywhere in the statute, based on the parties' stipulations. However, claimant in a post hearing argument asserted that the Division had no statutory authority to determine what how much of the third party net recovery of about $54,000 that the Fund could reach to offset an award of permanent total benefits.

The Supreme Court in Banks V Clint Zweifel, SC 90131 (12-1-09) agreed that the circuit court would need to make such a determination, as the Division lacked jurisdiction. The case did not mention the issue discussed by the administrative law judge that after the employer asserts its subrogation rights against the third party settlement no further funds might exist which begs the question why the matter went as far as the Supreme Court.

Friday, March 13, 2009

Proposed Mo Comp Legislation: Duck and Cover

To paraphrase an over-quoted Mark Twain saying, no business is really safe when the legislature is in session. Although no major legislative overall is on the table, Missouri has several important pending bills.1 It remains to be seen how many bills will move forward. Some of the proposals include:

* Increase death benefits for survivors of firefighters, police officers, paramedics, and corrections officers killed in the line of duty. Proposed benefits include a lump-sum that ranges from $25,000 (HB 580) to $15,000 (SB 332). The fiscal impact statement was originally calculated at $10,000 per payment and assumes benefits for the program would cap at $500,000 per year. On average about 15 people within these classes died per year. Missouri provides already preferred status to firefighters and police officers regarding proof of certain types of injuries. The bill raises concern of "mission creep" by expanding the size of other preferred classes.

* Allow the employee the right to choose his or her own physician. (HB 907). No fiscal impact statement is provided with the bill. (They are probably still adding it up!)

* Allow Medicaid a guaranteed recovery of any benefits paid to claimants on public assistance, and requires employers to give 30 days notice before settling cases and prevents judges from approving any settlements until medicaid provides releases (SB 552). This bill appears to be a state equivalent to the new Rule 111 provisions to capture Medicare payments and imposes similar delays to require agency response about conditional payments before any settlements. The bill further requires parties to allocate all medicaid payments separately in settlements, to avoid the recent findings that Medicaid routinely asserts unconstitutional liens against lump sum settlements discussed in Doran v Mo. Dept. of Social Services, 2008 WL 4151617, Med & Med GD (CCH) P 302,623 (W.D.Mo., Sep 02, 2008) (NO. 07-CV-04158-NKL).

Pending legislation limits awards of disfigurement without a finding that disfigurement is a hindrance to employment. (HB 932) (SB 323).

A house bill allows contractors not to provide benefits when subcontractors have opted out of the Act due to religious reasons. (HB 288).

The Second Injury Fund faces extinction under HB 522 according to bill opponents. The bill would cap benefits at $40,000, restrict attorneys fees at 15%, and stop benefits to claimants who are incarcerated or are illegal to work. Four out of five Fund claims receive some payment, and the bill seeks to lower the cap to protect the fund's solvency instead of raising the current premium cap of 3% surcharged on employers. Fiscal impact reports costs of approximately $1,000,000 a year for the next three years. Testifying against the proposal included several union groups and, not surprisingly, MATA.


Thursday, March 12, 2009

Judge awards medical bills but denies disability in recurrent disc herniation case

Claimant is 50 year old long-term employee who states he hurt his low back in 2004 moving a 35 pound mold, and subsequently underwent two back surgeries and never returned to work. Claimant states although he had prior back problems the 2004 work accident made him worse and he was unable to return to his job and went on social security disability. The administrative law judge concluded claimant proved entitlement to some of the medical bills and temporary total disability, but denied any claim for permanent partial or total disability. The case is the recent 3-0 Commission decision affirming an award by Judge Kasten, Johnny Wyatt v Blair Packaging, DOLIR 3-12-09. 1 The case was affirmed in a per curiam order, 10-20-09 (ED 92756).

Claimant's expert concluded under pre-2005 law that the work injury represented a substantial factor in his need for surgeries after 2004, but that claimant's two previous back surgeries also at L5-S1 were a substantial factor.2 The employer's expert, Dr. Lange, found work was not a substantial factor, at all, and that back surgery put claimant at increased risk of re-herniation. The employer originally accepted liability, but then denied the case after survellience of claimant "participating" at a racetrack two months after the reported work injury.

Judge Kasten concluded claimant established that his work accident was a substantial factor and further aggravated his prior symptomatic medical condition resulting in the need for his 2004 surgery (his 3rd surgery at L5-s1). However, the claimant failed to prove his fourth back surgery, in 2005 (at L5-s1, and L4-l5) was casually related to his 2004 injury due to a favorable discharge after the 2004 surgery and reported worsening of his symptoms after driving a truck for several weeks with a different employer.

The court found bills related to the 2004 surgery related but rejected bills related to the 2005 surgery. No medical bills were awarded for bills discharged in a post-accident bankrupcty. Some of the bills had not been discharged, and the court rejected the defense that claimant's liability had been extinguished merely because the charges had been adjusted.

The claimant's experts asserted claimant was unable to return to gainful employment due to his pain complaints. Claimant's vocational expert asserted that workers older than 50 had a lot of difficulty working any type of new job. The court denied permanent partial disability noting the lack of expert testimony to allocate what specific disability was caused related to the 2004 surgery that was found to be work related. Claimant had acknowledged receiving 38% ppd disability for back injuries before the 2004 accident for recurrent disc herniations at the same level, but contends that 2004 accident made him much worse. Claimant's expert Dr. Zoffuto, amazingly, was "unaware of any way that that he could assign a value to each individual surgical procedure" and failed to provide any opinion on future medical to support an award of open medical care.


2 The Commission also recently affirmed a PTD award, finding a 2004 back injury a substantial factor in causing the need for anterior two level back surgery, when claimant had a previous one level posterior spinal fusion at one of the same levels. PTD benefits were awarded against the Fund, when claimant failed to return to work after a failed attempt. Kotraba v American Power Conversion, DOLIR 1-27-09 (Gorman) cf
Johnson v Duke Mfg., DOLIR 3-13-09 (involving prior and subsequent neck surgeries, and finding no causation on primary case to deny SIF benefits when recommendation for major surgery months before work injury).(Percy) Bowman v Radnor Holdings, DOLIR 3-13-09 (closed head injury, denying claim due to lack of supporting objective evidence and history of prior headaches and evidence of exaggeration.)

No Rating Required for Disability Award in Leg Contusion

Two lower leg contusions with complications of cellulitis were causation issues within lay understanding and did not require any medical expert opinion to assess disability or apportion disability between the two events. In the case of Bock v City of Columbia,1 the Commission affirms the ALJ award of 7 1/2% disability on a recent remand from the western district,2 reversing its earlier denial of benefits.

The 2005 case involved a maintenance mechanic who struck his right shin with a pipe, tore some skin, and later developed some cellulitis. About two months later while still recovering, he bumped the leg again while getting out of a shower. He reported continuing symptoms that his muscle ached and he was sore when the weather changed. Judge Dierkes awarded benefits, and the Commission reversed the award.

More complex cases outside lay understanding require assessment and allocation by an expert.3 It is important to appreciate that Bock arose on July 28, 2005, about one month before statutory reform. One of the reform changes added 289.190.6(2) 4 which mandated "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician," raising an issue under new strict construction to what extent the new requirement of "demonstrated" undermines much of the precedent relied upon in Bock that lay testimony alone in some cases can support an award of disability. The argument could be made that a claimant now always fails to make a prima facie case without disability evidence "demonstrated" by a rating disability or when findings are adduced as "impairment" and not of "disability."

In a post-2005 amendment case, the Commission affirmed a 15% award to a claimant for complaints of fatigue and lack of stamina, following a traumatic brain injury caused by a fall from a roof. For reasons never explained, attorney Goodnight never offered a disability rating report against the uninsured construction company, even though specials exceeded $250,000 for hospitalization related to a prolonged coma. The SIF is liable for medical benefits but not for PPD. The admissibility was apparently never challenged by the employer at trial or on appeal, who failed to appear at the hearing. The case was Michael Skinner v Donnie Morgan, DOLIR 7-2-1-09.

In a related note, the Commission affirmed a denial of benefits against the second injury fund by ALJ Vacca based on lack of medical evidence of threshold disability or synergy, citing a pre-05 decision that synergy could be judicially found without medical evidence in "rather obvious" cases. The decision is Andrew Krausz v Krausz Corporation, DOLIR 7-24-09, involving a claimant with a catastrophic crush injury to the foot pursuing benefits against the second injury fund for prior asthma condition that was periodically symptomatic.

In Bisby v Labor Ready Central, DOLIR 7-8-11, the Commission affirmed a denial of benefits to a pro se claimant who offered no medical evidence to establish a relationship between an admitted accident in which claimant treated once at an emergency room  for a leg abrasion to subsequent symptoms regarding impaired capacity to walk and loss of grip.  affirmed without opinion ED 97108 (Mo. App. 2012) 2012 Mo App. Lexis 280 (3-6-12).

1. Roger Bock v City of Columbia, DOLIR 3-11-09

2. WD 69674 (Mo. App. WD 12-30-08)

3 Wyatt v Blair Packaging, DOLIR 3-12-09 (failure to allocate between two surgeries),
Pursifull v Braun Plaster, DOLIR 1-3-08. (two accidents),%20Michael.htm

4. 287.190.6