Friday, June 26, 2009

Employers behaving badly

Employer ignores temp award, ALJ finds PTD
Claimant fell in a nursing home in 2005 and was diagnosed with an L5 radiculopathy.  She was found unable to ever work again as a result of a new back injury, superimposed on a prior disc herniation.    Thomas v Forsyth Care, DOLIR 5-17-2013

She was regarded as a poor surgical candidate due to depression, obesity and dependence on narcotics.   She reports she has to lie down and her legs buckle.  Claimant persuaded the ALJ that she was rendered asymptomatic from a prior disc herniation and had new symptoms of chronic back pain and foot drop.   The attempt to impeach claimant with remote felony convictions was not persuasive because claimant stated she had changed her life.

The Commission found the employer's refusal was a "brazen indifference" to a temporary award to provide treatment had no explanation and  "particularly egregious" based on testimony that delays impaired her chance of recovery and "condemned" the employer.  The Commission was unable to double unpaid bills as a penalty because the bills were not in evidence.   In Young v Boone Electric, also decided the same month, the same Commission made a point to indicate it would have awarded bills if they had been offered. 

ALJ Wilson
Atty:  Lawrence, Reidy
Experts:  Olive, Bennoch

Willful neglect from ignoring claim
A claimant alleges he injured his back pushing a 100 pound container resulting in a herniated disk. He consulted Dr. Shitut and advised he was a surgical candidate and proceeded with a temporary award. ALJ Hart awarded benefits, affirmed recently by the Commission.

The court noted the employer engaged in willful neglect and had not responded to various contacts by claimant's counsel Dalton. The court noted neglect referring the matter to defense counsel Moser, Marselek, who appeared over objection on the day of the hearing. Judge Hart awarded approximately $51,000 in back benefits, ordered future medical care and the right for claimant to chose his own doctor, ordered "maximum" compensation rate because "maximum" had been pled because the answer was in default, and referred the matter to the fraud unit. Claimant testified the employer did nothing while the case remained pending for a year after the claim was filed and wanted claimant to change the date of the reported accident, and then denied the claim due to late notice. The case is Kirk Wilson v Allied, DOLIR 6-2-09.

Employer ignoring prior award
A 41-year old claimant alleges a back injury arising from a 2003 accident, undergoes a two level back fusion by Dr. Graven in 2005, and claims he requires narcotics daily because of pain levels and can never work again. The claimant won a temporary award for benefits in 2005, and pursued treatment through group insurance when the employer failed to comply with the award. In a final 3 day hearing in September 2008, Judge Wenman found claimant permanently and totally disabled and entitled to future medical care, and noted claimant was unemployable in the open labor market due to daily reliance on narcotics. Medical evidence suggested a pseudoarthrosis. The court rejected a causation defense and found Dr. Curylo unpersuasive that the accident did not cause the disc herniation due to a delayed presentation of sciatica for 3-4 day until claimant drove on a fishing trip. The employer's denial was deemed untimely due to a late answer, and its notice defense failed due to lack of evidence of prejudice even though claimant may have waited several months to identify a work cause of his back pain. The employer had delayed several years in obtaining an IME but had filed two unsuccessful appeals to the Commission and court of appeals, both dismissed for lack of jurisdiction, and sought a declaratory judgment to challenge the constitutionality of 8 csr 20-3.040.The award exceeds over 457,000 for accrued benefits, plus PTD and open medical, that included sanctions of 229,000 in penalties for not complying with the original hardship award.1 Ellen Morgan represented the claimant and Moser, Marselek represented the employer. The case is Petelik v Motor Control Specialists, DOLIR 6-2-09.

In the recent case Tina Balls-Sawyers v Blue Springs School District, No. 69624 (Mo. App. WD May 5, 2009), the court retroactively applied the penalty provision, substantially reducing the statutory penalty of $236,000 to $176,000 because some of the charges had been paid prior to the hearing.

Refusing to make offer

The court of appeals sanctioned an employer for costs and attorneys fees under 287.560 for refusing to make a settlement offer on an admitted case contrary to its own expert who assesses permanent disability. The case is Clark v Harts Auto Repair, No. 69767 (Mo. App. WD 1-20-09).1The court of appeals affirmed an award of sanctions that includes partial costs of three depositions, attorney's fees and medical records.Claimant was awarded permanent and total disability after he fell from a ladder and injured his leg, underwent 9 surgeries, and later developed bilateral leg symptoms, back symptoms, RSD, and depression. The employer vigorously defended the case that claimant could do some work and that claimant exaggerated his symptoms. The employer's own expert neurologist assessed 54% BAW representing nearly $68,000, but the employer tendered no offer and the carrier declined to discuss settlement prior to the hearing. The court found the refusal to make any offers unreasonable based on the opinions of its own experts.The court of appeals affirmed the decision, noting it would not disturb the credibility findings among experts with conflicting opinions. The employer abandoned its bizarre first amendment argument that it asserted at the Commission.The lesson from the case is that an employer in an otherwise undisputed nature and extent case should pick its experts wisely, and should tender an offer before hearing after receiving its disability rating or risk sanctions for unreasonable defense. The employee counsel who insists that a claimant must have his day in court may face similar sanctions. But see Brennell v Patients First, DOLIR 8-13-09, denying a motion for sanctions and costs in a bilateral carpal tunnel case in which the employer paid medical and TTD benefits but made no settlement offers.

Sanctions reversed against employer
Claimant Nolan tested positive for meth and marijuana following a pick-up accident where he lost control for unknown reasons, which caused severe injuries. Claimant became paralyzed and died three months after the accident. The employer denied all benefits and the judge imposed sanctions of over $10,000 in attorneys fees against Degussa Admixtures for withholding benefits.On appeal the Commission vacated the sanction of attorneys fees, and imposed 15% penalty on all benefits, including medical bills. On first appeal, the court remanded the case to the Commission to brief the issue of costs under §287.560, as the Commission did not provide due process to the claimant before vacating the award of sanctions. The Commission on second round found the defense reasonable to assert based on the positive drug tests. Claimant appealed again, and the court found the court affirmed the decision to vacate sanctions against the employer, rejected the disparate points of error did not establish the Commission's decision was clearly against the logic of the circumstances and so unreasonable and arbitrary to shock one’s sense of justice. The decision is Nolan v Degussa Admixtures, Inc., No. 29282 (Mo. App SD 1-14-09)Although it is not clear from this recent court of appeals decision, the Commission case reports the employer had denied 100% of benefits instead of invoking the 15% penalty, and a dissenting commissioner criticized the employer and argued it failed to offer sufficient evidence that the "use of" any drugs "caused" the accident.

ILLINOIS - Sanctions after settlement
In the Illinois case Burzic v Illinois Workers' Compensation Commission, No. 1-08-2303 (April 28, 2009), claimant settled "any and all issues" for $175,000 following a 2002 injury with a back strain, and before the settlement he sought sanctions under 7090.2 and 4(c) for terminating claimant's vocational services in 2006. The lower court dismissed for lack of jurisdiction. The 1st District found the petition not precluded by the prior settlement and jurisdiction existed to consider the demand for sanctions, but found the facts did not establish a "policy of unfairness", rejecting claimant's contention that a single act supported an award of sanctions. "A single course of action in an individual case does not a policy make." The employer noted that claimant had dress code problems, attendance issues, and was a Bosnian with poor command of English.