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.

Thursday, September 10, 2009

Chemical, dust, fumes and exposure cases

Bird droppings, histoplasmosis

A denial of  benefits was reversed against the manifest weight of the evidence.  The claimant made a submissible case of a fungus-induced histoplasmosis and the employer offered no "coherent" alternate theory or articulate opinions with a reasonable degree of medial certainty based on a  review of records.  Claimant's notice was sufficient that he identified a disabling respiratory condition and his initial mischaracterization of the condition as cancer was sufficient as the employer did not demonstrate any evidence of prejudice .  Tolbert v the Illinois workers Compensation Commission,  No. 12-MR-200 (IL App. 2014) (June 5, 2014)

Experts:  Bruyntjens
Treater: Farah, Norris

Chicken house ammonia, etal

Claimant was diagnosed with  reactive airway disease after building and repairing chicken houses for Tyson Foods.  As a result, the Commission found he was unemployable in the open labor market.  Graham v Latco Contractors, 2014 Mo WCLR Lexis 52 (April 11, 2014).

Claimant ultimately identified specific chemicals when he sued Tyson.  He states he had to sell his family home, move away from Sikeston to the country in Piedmont where he could build a safe house where he was not exposed to chickens or any other noxious triggers.  He stated he was told his condition was irreversible and he should enjoy his time left.  Claimant's spouse testified to the deleterious affects after her husband's employment regarding his anger management, his weight control and his dental hygiene.  She noted he used to be good looking when she married him.   The voluminous award identifies a prior service connected disability for PTSD, among other conditions. 

The ALJ found the employer entitled to the full subrogation interest in the third party $750,000 settlement and the employer did not currently owe any accrued benefits of more than $200,000.  The ALJ allowed a full credit against the entire settlement  as there was no apportionment in the settlement check for the spouse's loss of consortium claim. 

ALJ:  Robbins
Atty: Rau, Petraborg

Allergy to wood stain renders claimant PTD
Claimant, 56,  was found unable to work after he developed an allergic reaction to applying stain, varnish, insulation texture and spraying fire retardants working for a company in the Branson area. Knepper v Midwest Coating of Mid Missouri, 2013 Mo WCLR Lexis 213 (November 21, 2013). 

  Claimant sought treatment for cracks and swelling of his right hand.  Claimant underwent multiple debridements, developed an MRSA infection, and triggering in two fingers of his right hand. The employer stipulated an injury through an exposure to chemicals that is medically and casually related to his work in 2006. The employer's expert indicated that the injury to the right hand created an opening for the MRSA infection causing chronic residual dermatitis, lymphedema and neurologic impairment.  He felt claimant could work with lifting restrictions as long as he avoided irritants and drying solutions.  The claimant's vocational expert concluded because claimant's poor use of his hand eliminated most unskilled jobs and ruled out other jobs because he couldn't state they were chemical-free.  Claimant's vocational expert was the only expert to find claimant unemployable. 

The Commission affirmed the award 2-1, with a dissent who concluded claimant was only partially disabled and other prior chronic health conditions impaired his ability to work.

The Commission found no statutory basis to award disfigurement in a permanent total case.  It noted disfigurement, however,  supported an award for permanent total based on testimony of claimant's brother-in-law who stated essentially that claimant's hand was so ugly for anyone to  hire him to do food service.  The ALJ noted at the time of the hearing claimant's right hand remained highly discolored with an ashen, cracked and flakey appearance.

The Commission affirmed an award of open medical noting the employer's own expert indicated that claimant didn't need any more medical treatment but conceded that he could use an over-the-counter moisturizers.  The award also notes claimant had a "potential" for recurrent triggering of his fingers, although it does not appear that had been treated for years  or exactly how recurrent triggering  flows from a skin reaction. 

It was undisputed that claimant had "marginal" academic abilities at the 4th grade level which were vocationally impaired his ability to be retrained and various chronic cardiac and respiratory conditions.  The ALJ noted the lack of expert evidence assigning prior disability to invoke any potential Fund liability.   Claimant had worked previous hand-intensive jobs cleaning floors, cutting chicken and flipping donuts but could not use the job skills he had learned during his ten years in prison.   

ALJ Mahon
Atty:  Newman, Blickhan, Burks
Experts:  Parmet, Volarich, Cordray, Swearingin
Treaters:  Harris, Haddow, Cross

The Commission awarded life-time benefits to a mechanic because of COPD and pleural fibrosis, caused by smoking cigarettes and working as a mechanic with insulated pipes, smoke, dust and fumes for 32 years. Medical experts agreed that work and "many years" as a smoker both contributed to his disease. The Commission in a 2-1 decision reversed a denial of benefits, and awarded life-time benefits against the second injury fund and partial disability and future medical against the employer.  The Commission found that claimant showed an increased risk greater than the general public and a link between his medical condition and distinctive features of the job. A claimant does not have to identify a specific noxious chemical. Claimant stated he was exposed to white powder and that sulfur fumes burned paint from employer's cars. The Commission rejected the employer's defense that the claimant was not competent to identify a substance as asbestos. The claimant testified about an asbestos-abatement program, and a supervisor identified material as asbestos. It was further reasonable to assume bags that were marked "asbestos" contained asbestos. Bennett v Kansas City Power & Light, DOLIR 12-7-10

The case involved a 2004 claim under former "liberal construction." The Commission found that the ALJ erred applying strict construction.

ALJ Siedlik
Atty: Knepper
Experts: Parmet, Beller, Kerby, Titterington

Paint fume exposure
The commission affirmed a 2-1 denial of work related asthma/RAD from exposure to paint fumes for about 2 years. Claimant is a 51 year old nonsmoker with allergies who worked initially in a painting booth until his duties were reassigned. Claimant described some ongoing symptoms after his layoff, but his examining physician Koprivica admitted during his rating exam he was asymptomatic. Claimant had no confirmatory tests of RAD, such as a methacholine test. The dissenting commissioner Chick felt claimant established causation because he had more paint fume exposure at work than away from work and the employer's expert was less credible because he did not testify. The administrative law judge declined to allow judicial notice to admit a CDC study discussing occupational asthma in other states, noting the more limited scope of judicial notice allowed by administrative law judges. Estebo v Webco Inc. DOLIR 7-13-11.

ALJ Mahon
Atty: Alberhasty, Sparlin, Bean
Experts: Koprivica, Parmet

Claimant alleged choking and a heart attack from noxious fumes after spraying an apartment bathroom to remove mold. The claimant’s expert attributed claimant’s symptoms to breathing muriatic acid without protective equipment. The Commission denied benefits and found claimant failed to prove accident, in Poarch v Madison Apartments, DOLIR 8-2-11. The administrative law judge concluded claimant failed to prove that claimant sprayed muriatic acid in his unmarked bottle or that the concentration reached a toxic level. Claimant denied immediate symptoms, delayed treatment for several weeks and had a history of a prior multi-level bypass. Claimant worked 25 years as a firefighter and alleged injuries while working as an unpaid employee without health insurance for his wife’s apartment complex. The employer settled the case before hearing for $16,000. 

The court of appeals affirmed a denial of benefits that claimant failed to prove accident and rejected the contention that the second injury fund had a duty to present contrary evidence.  The court noted 287.808 created a duty to present evidence on affirmative defenses, but claimant had the duty to provide credible issue on accident and the Commission indicated concerns about his credibility.   Poarch v Treasurer of the State of Missouri, 2012 Mo. App. Lexis 592 (May 1, 2012). 
Atty  Kenter, Lowe. 

ALJ Cain
Experts: Parmet, Cordray
Treater: Schenk

Isocyanate exposure to painter caused asthmatic bronchitis
Claimant worked more than 20 years with a previous employer as a painter, but his work painting  a bridge was the prevailing factor in his asthmatic bronchitis.  Medical records identified acute changes such as burning and peeling skin, direct exposure to paint splatter and ineffective masks, and a positive blood  test.  The employer's physician agreed the exposure was a contributing factor, but disputing whether it was the prevailing factor.  Claimant had a 20 year smoking history, although the exact amount of smoking varied.  Fry v Thomas Industrial Coating, DOLIR 11-10-2011, 2011 MOCLR 225.
ALJ Magruder
Atty  Yarwood, Lawson
Treater:  Yagan
Experts;  parmet, Kerby

Aluminum dust and  supports COPD claim
The Commission concluded exposure to dust and smoke substantially caused asthmatic bronchitis in a 66 year old retired smoker.  Claimant had no obligation to provide notice of her 2004 disability until 2006 when a physician identified work as a factor.  The ALJ noted claimant failed to prove periods of  TTD after her retirement.    Elwell v Stahl Specialty, 2011 MOWCLR LEXIS 233 (Nov. 15, 2011) Experts:  Kerby, Koprivica

Benzene exposure renders claimant unemployable
A 57 year old long-term employee involved in the manufacture of battery cells reported exposure to benzene and other substances for a 10 year period caused IgA myeloma with resulting kidney damage, neuropathy in his hands and feet, and fatigue.  The employer indicated claimant had no direct contact to benzene, the company use involved small quantities, and claimant could not make causation without more reliable information on dosage or duration of exposure.   Neither party offered any field studies to evaluate the level of any toxic particulants.  The Commission questioned whether such tests were necessary to establish causation.  The employer reported some of its documents were lost in a fire.  The claimant offered testimony from co-workers of lack of adequate safety equipment including no respirators and poorly functioning ventilators.  Testimony from claimant's expert noted higher disease rates in certain industries and that claimant incurred the condition a younger age than typical for non-industrial onset.  A coworker had also died form myeloma.

The Commission affirmed an award of permanent total benefits with open medical and imposed a 15% safety penalty for the 57 year old claimant.   The Commission rejected the employer's objection that testimony had to satisfy the Frye standard.  The award included past medical benefits of $734,586.   Moreland v Eagle Picher Technologies,  DOLIR 10-20-2011, 2011 MOWCLR LEXIS 210, affirmed  2012 Mo. App. Lexis 396 (SD 3-21-2012).

ALJ  Fisher
Atty:  Platter, Gross
Experts:  Goldstein, Borak, Parmet, Pineda

Tricholoroethylene exposure renders claimant unable to work
A 62-year old claimant's multiple exposures to tricholoroethylene caused dementia, tremors and blackouts and rendering him permanent and totally disabled, based on an award from Judge Wilson recently affirmed by the Commission. The parties did not dispute that claimant had an exposure and that claimant was unable to work, but questioned whether the occupational exposure caused the conditions. Claimant described acute symptoms after various exposures. Claimant had a normal MRI, normal EMG studies, and no evidence introduced of any liver damage. No evidence was introduced from experts Heligman or Koprivica to support an award for future medical. Judge Wilson rejected a statute of limitations defense noting claimant did not become aware of a work related claim until he stopped working in 1995, rejected that the employee had any obligation to provide notice under the older statute, and that the employer had no "credit" for benefits paid on a disability plan that could be applied under chapter 287. The case is Trueblood v FAG Bearings, DOLIR 9-9-09.

Claimant proves exposure causes chemical sensitivity
In Lewry v City of Kansas City, 9-1-09, the Commission found PTD for a chemical exposure, resulting in tremors and neurologic damage, and chemical sensitivity. ALJ Siedlik noted claimant relied upon testimony from Dr. Kilburn, a well-qualified expert to address the effects of claimant's exposure to cyanide, and pesticide ingredients. The employer introduced records that claimant might be a malingerer.

Benezene exposure
In Kammeier v AR Fleming Printing Company, DOLIR 4-1-09 the Commission affirms an award of PTD benefits awarded by Judge Carlisle, in a second bite at this decade-old exposure claim.Claimant received an award of permanent and total disability benefits from exposure to various chemicals, leading up to his last employment in 1999. Current complaints include a loss of intimacy, difficulty sleeping, burning sensation in his fingertips, decreased ability to grasp or button a shirt, leg numbness below the knee with shooting pain, cold and burning feet, inability to distinguish between hardwood floors and carpet or gas and brake pedals, difficulty putting on tight socks, and tucking or buttoning his shirt. His toes do not bend and he has gained one-hundred pounds from inactivity. The employer’s expert indicated claimant’s abnormal studies likely arose from cigarette smoking and not from occupational exposure to benzene, including trimethylbenzene. Other experts disputed whether the medical studies supported causation or not.Claimant originally lost causation when the cause was first tried, but the Commission reversed resulting in a temporary award. The employer reported it had paid 438 weeks1 in TTD benefits leading up to the second hearing.Claimant's counsel attempted a pre-emptive strike for a determination of dependency, but Judge Carlisle declined to make an findings of dependency, noting claimant could not have dependents unless he was already dead.1. 287.170 now limits TTD payments to not more than 400 weeks.

No disability for cleaning solvent exposure
Claimant alleged permanent total from asthma and treated for period asthma attacks and claimed her conditioned worsened due to exposure of 409 cleaning solvent. Judge Landolt found the employer controlled the work environment, knew of claimant's exposure to allergens, and created a direct link for causation of a work-related condition since she could have arguably avoided exposures outside the workforce. Claimant was awarded about $11,000 in medical bills, but did not establish additional disability, despite vocational evidence that she was unemployable because she could not "control the air" around her in the open labor market. Claimant continued to report 4-5 attacks per month even after she stopped working. Prior to her 409 exposure, she had reported attacks due to exposures at work from cat hair of a co-employee and obtained a medical restriction that: " she not share desks, chairs, etc. with workers who have cats, nor work near them." The case is Bills v Express Scripts, affirmed by the Commission on 7-30-09.

Claimant failed to prove disability from aluminum dust exposure
Claimant asserts that exposure to aluminum dust in her job as a sander caused numerous medical problems, and states she worked 40% of her time sanding and could look like a "tin man" due to dust exposure. Claimant filed a claim in 2003, when she was first diagnosed with high serum levels a year after her employment ended. Judge Dinwiddie denied benefits and found the employer's expert Dr. Tominack more persuasive based on his toxicology credentials and more informed medical history. The judge also noted that claimant's cogent presentation at two hours of hearing undermined her claim that work made her forgetful and confused. The case is Sally Barbrow v Leonards Metal, affirmed by the Commission on 5-20-09.

Pro se loses mold exposure case
The commission affirms a denial of benefits in the pro se case Nanette Kirkey v City of Springfield, DOLIR 6-24-10, in which claimant who has allergies alleges working in airport caused disability from exposure to mold. The administrative law judge noted that claimant failed to prove her case: she had no medical evidence of work-related causation or disability, that mold exposure levels at work were any higher than what she would encounter in non-occupational environment, and that her pictures of "mold" may not have even been mold. Claimant's original hearing date had been continued for 2 months to allow her to retain counsel. The Commission does not identify what exact point of error was alleged on the appeal. The case demonstrates another example of how comp pro se claimants can prevail for their day in court without a summary judgment procedure.
ALJ Wilson
Atty: Harmison

The Comission affirms a denial of a chemical sensitivity claim, after affirming a permanent total award last year with similar allegations.  The condition is sometimes described as idiopathic environmental intolerance (IEI).

Claimant became short of breath, dizzy, and nauseous after working in her employer’s greenhouses, and states spraying plants periodically over 2 ½ years caused multiple chemical sensitivity. She stated she even had an "attack" during an IME and couldn’t tolerate her own expert’s cologne.

Claimant treated for several years with Dr. Sultan for chemical sensitivity since the 1998 exposure and uses a "detox" cocktail. Dr. Sultan advised her to change jobs and work only in a "clean" environment. He did not testify in her claim for permanent and total disability, and the employer objected to another expert testifying about Dr. Sultan’s causation opinions. Claimant states she is a recluse and rid her home of chemical products and changed her diet due to food sensitivities. Dr. Feinberg, a pain management expert retained by her attorney, concluded that claimant was unemployable.

The Commission affirmed a denial of the claim. Claimant and her expert were not found to be credible. Claimant described inconsistent symptoms. She provided no medical support for her claims of fibromyalgia and latex allergy (including multiple normal RAST tests). Claimant’s expert was found less qualified. He did not fully consider her entire history that included prior complaints of headache, nausea and fatigue and asthma Dr. Belz, the employer’s expert, indicated that the diagnosis of chemical sensitivity is not generally recognized in the medical community.

The case demonstrates the importance of an expert’s qualifications relative to other experts. No explanation is indicated why Dr. Sultan, as a treating expert, did not testify.

The Commission affirmed a permanent and total disability award last year in a similar chemical sensitivity case. Lewry v City of Kansas City, involved another patient of Dr. Sultan who alleged symptoms arising from exposure to pesticides and unknown chemicals. In Lewry, claimant reported tremors and described irregular use of protective gear. The administrative law judge in Lewry, by contrast, criticized the employer’s expert, Dr. Parmet, as less credible because he had the "pre-conceived" notion that multiple chemical sensitivity did not exist as a "real" diagnosis.

transformer oil
The court of appeals has tossed back to the Commission for further findings a case from an exposure 29 years ago in which claimant reported an accident caused a swollen penis, among other symptoms, and rendered him unemployable.
Claimant alleges he cannot work since 1990 after 3 exposures to spilled transformer oil from 1987-1990 in his employment as a electrical lineman causing sclerosing lipogranuloma resulting in infection with testicular inflammation. "Mr. Spencer suffered from a "swollen hard penis," flushing of his face and arms, and complained of blurred vision and pain." The case is Spencer v SAC Osage Electric, WD 70443 (Mo. App. 2-9-10).
The Court of Appeals reversed the Commission's denial of benefits for further findings of fact whether the Commission considered claimant's exposure to transformer oil was in its "virgin" state or altered state based on length of service and exposure to lightning strikes and the elements. The Court noted the employer's expert had not considered the effects of transformer oil in the later condition and a denial may be against the overwhelming evidence in those circumstances since such a finding would be uncontroverted. A medical expert identified self-injection of wax to improve sexual performance was recognized as a cause for the condition, although claimant denied he performed any self-injections The Commission "must decide" not only the historical facts concerning the transformer oil to which Mr. Spencer was exposed, but must also address Dr. Belz's opinions as to the changes in the chemical composition of that 15 oil based on its service life and history (including his competence to offer those opinions).

Claimant did not provide histories of transformer oil exposure to his initial treating exposures and his expert Dr. Belz, formulated one of his theories of causation 1 week before the hearing. Claimant's expert reported a latency period of 5-18 months following an exposure.

The court reminded the Commission to consider application of pre-1993 law, as the case originated nearly 3 decades earlier. Attorney Dan Rice represented the employee.

Claimant, 64, worked 8 years as a welder and reports exposure to welding and "fumes" caused chronic pulmonary disease that rendered him permanently unable to work, an argument supported by his expert Dr. Poetz and accepted in Hopkins v Motor Coils Mfg, DOLIR 2-4-10 (Landolt, J). Claimant asserted that he had ill-fitting safety equipment and that at one time was able to engage in semi-pro football. Dr. Dew, the employer's expert, concluded that claimant had bronchial asthma from an industrial fire, and that welding could aggravate claimant's condition, but could not conclude that claimant had any welding induced asthma. The administrative law judge noted that Dr. Dew's opinions were "difficult to decipher." Dr. Garcia noted worsening symptoms of claimant's asthma but found claimant employable and attributed the condition to chronic smoking.

insufficient proof of exposure
Claimant lost his claim against the second injury fund when he failed prove an accident that his alleged exposure to muriatic acid fumes caused a heart attack. Poarch v Treasurer of the State of Missouri, 2012 Mo. App. Lexis 592 (May 1, 2012).  The ALJ found that Poarch's "whole case was based on his uneducated self-diagnosis or determination that he was exposed to some substance for which he offered no credible proof that he was in fact exposed or that the substance was toxic. The ALJ [Cain] further noted that Poarch had no expertise in identifying muriatic acid and that Poarch, who was not a doctor, only offered his self-diagnosis as proof that he sustained a heart attack on May 18, 2006."

Claimant alleged choking and a subsequent heart attack after he inhaled noxious fumes while spraying an apartment bathroom to remove mold. The claimant’s expert attributed claimant’s symptoms to breathing muriatic acid without protective equipment. The Commission denied benefits and found claimant failed to prove accident, in Poarch v Madison Apartments, 2011 Mo. WCLR Lexis 169 (August 2 2011). The administrative law judge concluded claimant failed to prove that claimant sprayed muriatic acid in his unmarked bottle or that the concentration reached a toxic level. Claimant denied immediate symptoms, delayed treatment for several weeks and had a history of a prior multi-level bypass. Claimant worked 25 years as a firefighter and alleged injuries while working as an unpaid employee without health insurance for his wife’s apartment complex. The employer and Fireman's Fund settled the case before the hearing.

Wednesday, September 2, 2009

Limitations on future medical awards

Future medical may include specific modalities
The Commission affirmed a finding that claimant  was entitled to medical care from a specific physician "as prescribed by Dr. Bernabe or another physician" and  required future medical care for her back injury including treatment at a pain clinic,  narcotics, non-narcotics, physical therapy, epidural steroid injections, foraminal nerve blocks, trigger point injections and radiofrequency ablation procedures based on the uncontroverted opinion of her non-treating medical expert.  Barnhart v Eldon Nursing Home, 2014 MO WCLR Lexis 64 (May 6, 2014).  The Commission finds that the employee is   "entitled to any or all of them that she chooses to pursue and that any doctor contemporaneously recommends" and that "we will not endorse such a result" to allow  the employer to dispute the reasonableness of such care by obtaining a contrary  medical opinions.

Claimant alleges injuries arising from a Sept. 2011 accident lifting a 450 pound resident in her capacity as a certified nurse's aide.  The employer offered no evidence in the final hearing contesting the extent of disability.  The employer lost its defense at a temporary hearing and was sanctioned $4100 because it did not "offer a reasonable explanation for the cessation of TTD benefits in this case as well as an inadequate effort at procuring appropriate medical care for Claimant."  Claimant testified about her concerned that the employer would not comply with the award or allow her to continue pain management for degenerative disc disease.  The ALJ had awarded 25% based on a rating from claimant's expert.

The decision departs from precedent that a future medical award does not generally designate a specific provider or specific forms of treatment.   The result might be explained by findings of noncompliance by the employer of abdicating its statutory right to select a medical provider. 

ALJ  Ruth
Atty:  McDuffey, Reidy
Expert:  Volarich
Order to return to former doctors when 2nd opinion jeopardized claimant's medical recovery

Claimant established he was unemployable when a building collapsed on him while he was suppressing a fire, resulting in PTSD and sympathetic pain disorder.  Held v City of St. Louis, 2014 Mo WCLR Lexis 50 (April 10, 2014) Claimant underwent surgery to his ankle and elbow, and a spinal cord stimulator  and was unable to return to his former duties due to permanent restrictions.

The ALJ noted the employer abandoned providing  treatment after 5 years when it sent claimant to a different pain specialist who told him to wean off of his narcotics.  The ALJ found this encounter   jeopardized claimant's life, health and recovery and ordered future medical care through specific designated former medical providers:   Dr. Guarino and Dr. Bassett. The employer had provided more than $300,000 in medical benefits and continued  salary for two years to the 45-year old claimant before he qualified for a service-connected disability. 

 The ALJ concluded the last accident alone rendered the claimant totally disabled based in part due to medication caused by the last accident, even though prior conditions contributed to his total disability based on expert opinion. 

ALJ  Ottenad
Atty: Wagner, Goeddel
Experts:  Musich, Graham
Treaters:  Guarino, Bassett, Ritchie

Future medical, as directed or recommended by Dr. X

The commission modified a future medical  award that designated a specific treating psychiatrist and concluded that there was sufficient basis to award 70% disability of the hand and reduced an award for psychiatric disability and concluded a finding of PPD was not premature despite the need for further care. 
Bauer v LE Squer Machine, 2013 Mo WCLR Lexis 198 (Oct 3, 2013); affirmed 2014 Mo App. Lexis 714.
ALJ Denigan
Experts:  Schlafly, Rotman
Treater:  Bassett

The commission modified an award and found an order reversible error when it stated:  ""Employer is hereby ordered to provide such medical treatment as Dr. Brockman or any physician to whom the Claimant is referred by Dr. Brockman which is medically reasonable in order to cure and relieve   the effects of the injury Claimant suffered on January 18, 2009" as in the facts of this case the Division could not order psychiatric care as directed by a specific person.  Rainbolt v Audrian, 2013 MO WCLR Lexis 161 (August 23, 2013).

The commission affirmed a PTD award  but found an order reversible when it stated "future medical care to be directed by employee's primary care physician, Dr. Salmon."  The Commission award contains several typographical errors referring to chapter "297."  Leonard v Branson Granite,  2013 Mo WCLR Lexis 164 (August 29, 2013).
ALJ  Holden

Future medical awarded, but no waiver
The commission modified an award of future medical care with a  provider designated by the ALJ and found no statutory authority to appoint a physician, only authority to order a change in a physician based on certain findings, all of which were not present in this case.    Bush v Westchester House, 2-13-2013. 
ALJ Denigan

The Commission modified an award of future medical and found the employer did not waive its right to select future medical providers.  Demore v Demore Enterprises, 2012 Mo WCLR Lexis 170 (Sept 27, 2012).
ALJ  Wilson

Future medical with specific doctor , but visits limited
Claimant is a welder with myofascial shoulder pain and established entitlement to past medical bills and future medical for "nonsurgical treatment" with a specific named provider for "up to four visits per calendar year." Claimant had a "strong" doctor-patient relationship with the named provider.  Curan v Johnson Controls, 2012 MO WCLR LEXIS 72 (3-29-2012)
ALJ  Allen
Atty:  Whipple
Experts:  Egea, Rhoades

Future medical, claimant picks own doctor
The Commission modified an award for future medical which allowed claimant to pick his own doctor and found the employer had not waived its statutory right to designate a provider.  Joplin v Gates Rubber Co., 2012 Mo WCLR Lexis 33 (3-8-12)

Future medical, except for Dr. (fill in the blank)
The Commission modified an award for future medical in a temporary award when the ALJ attempted to exclude a specific back surgeon, when the award contained no findings that the expert endangered claimant's life, health or recovery.  Thompson v Lone Star Steakhouse, 2011 MO WCLR Lexis 229  (Nov. 8, 2011) 
ALJ Denigan
Atty:  Hamby, Klug
Experts:  Volarich, Chabot

Future medical, "as designated by Dr. (fill in the blank)"
An award for future medical is limited to reasonable and necessary care, and the Commission modified an award when designated as treatment recommended by claimant's expert.  Arnold v Mo Dept. of Corrections,  2011 mo wclr lexis 201    See also:  Duever v All Outdoors Inc., 2011 Mo. WCLR Lexis 207
ALJ  Tilley.

By contrast, the commission awarded  treatment as recommended by claimant's expect, preceded by an
order for re-evaluation by claimant's expert, a spine surgeon,  to assess any  "pre-myelopathic" findings.  No other expert  had found such a condition to support a symptomatic cervical disc and the employer's expert indicated that diagnosis of pre-myelopathy was not generally recognized  in spinal surgery.  Farley v Embarq/Century Link, 3-21-2013. 

Future medical awarded, even without evidence of cure or relieve
Claimant received an award for PTD benefits related to disc surgery with ongoing symptoms requiring a pump, but court rejects "unique" defense that employer didn't owe for treatment since it didn't help claimant cure or relieve symptoms. The Commission noted ALJ Herschel made unnecessary findings related to SIF liability, as claimant was found to be PTD. Snider v Cooperative Workshop, 2009 MO WCLR Lexis 194.

Future Medical, OTC meds advised
Hampton v Champion Precast, 2-24-2012, concluded that the claimant met his burden proving entitlement to future medical care based on need for over the counter analgesics modifying the original award.

Green v Platte County, 2009 MO WCLR Lexis 136, concluded claimant met his burden for future medical care based on periodic use of over the counter medication and recommendation that claimant may require diagnostic studies in the future despite the absence of any current need for care. 

In Hargis v Ree’s Contract Service, 2004 Mo WCLR Lexis 176 the ALJ attempted to limit the future medical award to prescription medication only, a limitation the Commission removed on appeal.

Prior degenerative condition defense rejected, surgery awarded
Claimant established that an unauthorized multi-level 360 fusion was reasonable and necessary to "cure or relieve" him, based on testimony that it "gave him hope", even though claimant still asserted he was in way too much pain to ever work again. The employer provided treatment including back surgery with a neurosurgeon following a 2001 back injury. Claimant was told to seek treatment on his own. Dr. Gornet performed anterior and posterior fusions at L2-L5 due to stenosis, representing over $148,000 in disputed medical expenses. At the time of surgery Dr. Gornet asserts he found small disc herniations and annular tears. Dr. Gibbs concluded such treatment was not indicated. The administrative law judge found the surgery cured or relieved claimant based on clamant's testimony that Dr. Gornet "saved his life" and "gave him hope." Claimant was found PTD because after the surgery he still experienced pain in his low back and legs that was of such severity it was unlikely any employer would hire him. The court rejected the employer's defense that the second surgery was unnecessary or related solely to degenerative conditions, when claimant asserted he had no prior problems. The case is Reed v Associated Electric Cooperative, 302 S.W.3d 393  (Mo. App. 2009).

Employer liable for complications of authorized surgery.
In  Meyer-Linquist v Shugart, Thompson & Kilroy, 2009 MO WCLR Lexis 98, A 38-year old legal assistant claims she could never work again due to extreme complications following a carpal tunnel release and thoracic outlet surgery. She had a history of prior carpal tunnel releases who stated she developed carpal tunnel again transcribing tapes. Dr. Graham, the employer's expert, criticized the decision to proceed in the absence of abnormal EMG studies.The employer subsequently authorized a thoracic outlet surgery, which Judge Cain considered unrelated. The employer was still found liable for complications related to the TOS. Namely: "Claimant alleged that as a complication of the authorized treatment including the first rib resection, she developed RSD/CRPS, required a cervical sympathectomy during which a nerve to her arm was severed, developed Horner’s Syndrome, and that she was prescribed more than 20 stellate ganglion blocks. She alleged that she developed an infection due to the ganglion blocks and that she required a hemilaminectomy from C4 to C7 to remove the abscess."Judge Cain found claimant's assertion that she was PTD unconvincing and awarded 50% BAW with open medical, but conditioned her benefits on attending a detox program. Dr. Koprivica, her expert, indicated that he was unable to touch her to perform a physical exam due to extreme pain, although video evidence suggested she over-stated her symptoms. Claimant also represented that she was unable to work, but continued to run a bond company and involved with bounty hunters tracking down criminals. .

Employer liable for injury in therapy.
Judges can assess credibility in many ways to determine what a case is worth, but clothing is usually not often cited as a factor. In the recent decision Sater v MTC Construction, 2009 MO WCLR Lexis 139, ALJ Vacca awarded claimant 15% for a disc bulge and 30% for an operated shoulder, representing over $50,000 in disability benefits, noting that claimant "was a credible witness who appeared in a suit and tie, well dressed, well groomed, having served his country in the Gulf War and he testified directly, succinctly and most credibly." Claimant, a 33 year old iron worker, alleges he tore his shoulder in therapy while treating for a shoulder strain