Wednesday, May 20, 2009

Compensation Rate Cases

Commission finds "exception" to apply higher compensation rate. 

This case involves a fight over the correct rate when claimant was a part-time employee and off work about 2 years following an accident. Holmes v City of Farmington, 2015 MO WCLR Lexis 85.

The Commission invokes 287.250.4 "escape clause" that it could exercise broad discretion  in order to compute rate if the statutory formula how to produce it ended up with an unfair or unjust result.  The employer contended that claimant's compensation rate was limited to the statutory minimum or $40 a week.  The ALJ found a rate of $464.76, which the Commission affirmed for different reasons.   Claimant was "on-call" to fill in more missing firefighters, but had worked sporadically prior to the accident which would have resulted in what the commission describes as a "paltry" rate if the rate was computed normally using the prior 13 weeks.

The Commission construed exceptional facts to include the financial hardship claimant would face by applying the lower rate, by the long recovery period as a result of his injuries, and that the "risks" were indistinguishable by full time or part time work.  The Commission reduced the duration of TTD and noted the claimant's expert had relied on inaccurate information. A dissent would have affirmed a longer period of TTD based on claimant's testimony and to reward him for being "stoic" and returning to work in pain even though he described the expert opinion on TTD as worthless.

ALJ  Tilley
Atty: Seufert, McHugh
Expert: Cohen

Ambiguous days missed on wage statement
The Commission reduced claimant's compensation rate for PTD benefits about $130 a week when the ALJ excluded 2 weeks in his calculation of compensation rate from a stipulated wage statement.  The commission found  the absence of 13 days on the wage statement was ambiguous and the ALJ lacked evidence to assume the dates missed constituted regular or scheduled work days and improperly excluded the two weeks.  The case awarded PTD Fund benefits to a  a 55-year old who hurt his back nearly 11 year years ago  lifting a trash can combined with profound pre-existing kidney disease. The Commission released its award almost two years after the ALJ's award in March 2011.  Abdullah v Waste Management, 3-1-2013.
ALJ  Gorman
Atty:  Sandza, Toepke
Experts:  Volarich, Gonzalez, England  

Wage loss second job
The claimant failed to establish earnings from after hours work performing plumbing and furnace repairs for various households flowed from an employment relationship to trigger second job wage loss. Claimant sought to include additional earnings from 20 jobs but stated he lost his business and tax records. Chambers v DS&F Plumbing, DOLIR 6-8-10.
ALJ: Wilson (affirmed)

Teacher Rate
The Commission modified claimant's wage rate using the days actually worked and not the formula for wages "fixed by the year." Claimant was a special education teacher employed 187 days over two semesters, but elected payment over 12 months as part of an annual salary. The Commission noted strict construction did not prevent it from applying section 250.4, when none of the other methods of computing wage rate applied to produce a "fair and just" result.

Claimant lacerated her tendon while using a paper cutter. Judge Dierkes awarded a 50% award for the disability and 3 weeks disfigurement, related to a permanent droop, and open medical. The case is Brunner v Columbia Public School District, affirmed by the Commission on 5-20-09.

Last Injurious exposure date used

In  McGhee v W.R. Grace & Co,  2009 MO WCLR Lexis 129, claimant alleges he developed asbestosis from handling insulation at W.R. Grace, a bankrupt company, more than 25 years earlier. Judge Mahon awarded PTD benefits, using the rate in 1973, when claimant last worked, relying upon Enyard, rather than the rate applicable in 2001 when claimant was diagnosed. The court of appeals found Enyard inapplicable becuase it was decided prior to 287.200 and used the date when claimant became diabled and not the date of last exposure.  312 S.W.3d 447 (Mo. App. 2010). 

Per diem included for injured truck driver
Survivor benefits to a truck driver killed on the job increased based on per diem payments and the added payments were not “special expenses” excluded as compensation, according to Caldwell, dec. v Delta Express, 278 S.W.3d 251 (Mo. Ct. App. 3-19-09),1 affirming the Commission’s award of benefits.The claimant was paid based on mileage and provided a per diem but was not required to keep track of any receipts related to the per diem. The earlier leading per diem case Grimes v GAB Business Services, 988 S.W.2d 638 (Mo. App. 1999), found a per diem payment did not increase wage rate when claimant’s expenses always exceeded the per diem due to lack of economic gain, but the court suggests that when reimbursement exceeded expenses such payments may represents economic gain to result in a higher compensation rate. Other special expenses incurred by Delta drivers required receipts. A driver testified that per diem payments made by Delta Express exceeded expenses and represented economic gain and that payments were made whether claimant slept in a motel or in a truck sleeper. The court raised the issue but declined to resolve whether evidence of economic gain is necessary for a claimant to obtain a high wage rate from per diem payments under strict construction as the economic gain concept discussed in Grimes is not present in the statute.

Tuesday, May 5, 2009

No Penalty against hospital for collection efforts

St. Francis Medical Center provided treatment including back surgery to claimant allegedly injured from a 1996 work injury. Claimant sued the hospital after collection efforts by the hospital, under the penalty provisions of 287.140.13. The court found the collection efforts did not violate provisions of 287.140.3, subjecting the hospital to penalties, as claimant initially told the hospital to bill her group insurance and later told her to send the bills to her employer. The court noted that even though claimant obtained a temporary award and sought reimbursement did not avoid summary judgment as claimant induced the hospital to bill her group. The case is Beard v St. Francis Medical Center, SD 29126 (Mo. App. 5-4-09).

New Statutory Penalty Applies Retroactively

Statutory amendments in 2005 addressed penalty provisions of 287.510. Under the prior version, “the amount [of the temporary award] may be doubled in the final award. In the 2005 amended version, “the amount equal to the value of the compensation ordered and unpaid may be doubled in the final award.” The amendment avoids the windfall to the claimant when the employer later makes payments pursuant to the temporary award.

In Tina-Ball v. Blue Springs School District, No. 69628 (Mo App. May 5, 2009), the Western District retroactively applied 2005 changes to a 1995 case in which benefits had been doubled against Blue Springs School District and Hartford for medical and TTD benefits. Hartford ultimately paid the TTD benefits. The court found the employee did not have a “vested” right to obtain double benefits for TTD, when Hartford had paid the TTD, but affirmed the penalty of $176,127.90 because of unpaid medical benefits when the administrative law judge ordered treatment. The court further affirmed the award for permanent total.

In the case claimant, 34, eventually underwent a 2-level fusion and never returned to gainful employment. She states she developed back problems after she drove a bus for 6 years. The employer relied upon its expert a spine surgeon Dr. Ebelke that there was no such thing as repetitive back trauma, and that claimant’s activities were not that intensive since she had 3 hour breaks and never mentioned anything in her DOT physicals. The court deferred to the Commission’s determination regarding credibility of witnesses, nothing that the employee had introduced its own experts on causation and the only vocational evidence concluded that claimant’s use of narcotics and reported need to lie down presented formidable job restrictions to ever obtain gainful employment.