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.

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

Loading Factors and multiplicity

The court of appeals upholds a commission award granting a multiplicity factor and did not find the award inconsistent with strict construction, even though nothing in the statute expressly authorizes a multiplicity award.  Kolar v First Student Inc., ED 102450 (Mo. App. 9/22/2015)

"However, we note neither the original nor the amended version of the Workers’ Compensation Act mentions the use of a multiplicity factor. Instead, that mechanism was developed by case law. We find allowing multiplicity factors to continue to be used is not inconsistent with strict construction of the Workers’ Compensation Act. Had the legislature intended to discontinue their use, it could have done so explicitly in the amended statute. Because it did not do so, we presume it did not intend to prohibit their use. "

The case involved a 400 pound bus driver who hurt his leg and claimed he developed new symptoms of mis-tracking in the other leg while he was recovering.  The employer's doctor felt the most likely explanation was obesity.  The Court, affirming the commission, noted that treating orthopedist was less credible.  The court deferred to the commission to resolve credibility issues regarding the employer's various points of error and affirmed the award for disability and future medical to both knees.

Atty:  Keefe, Salmon
Experts:  Volarich, Medler

The commission affirms a 2.5% load, despite some inconsistencies in the record. Connors v Fed Ex, 2014 MO WCLR Lexis 80 (June 13, 2014). 
ALJ Siedlik

In a fund only case, the Commission affirmed an award of a load of 15% to an opposite shoulder and 10% to other body parts based on a party stipulation.  Branson v B&G Skid Removal, 2014 Mo WCL Lexis 36  (3-14-2014).
ALJ Ruth
Atty:  Keefe, Rowley
Experts:  Volarich
Treater Adams

In a fund case the Commission applies the "well-established practice among workers' compensation practitioners, attorneys, administrative law judges,  and the Commission of using a "loading factor" to account for the synergistic effect between preexisting and primary disabilities" and avoid calculations at 400 weeks to avoid the "absurd" notion that cumulative disability cannot exceed the statutory maximum of 400 weeks.  Wooley, dec. v Belo Corporation, 2014 Mo WCLR Lexis 54.   In an August 2002 case the claimant was awarded SIF benefits on a cumulative disability of 242 weeks.  As a result of an accident 3 months later, the Commission awarded a second award against the fund additional disability of $11,938 finding that claim then had cumulative disability of 351 weeks.  In a third July 2003 case, 8 months later, claimant was found to have sustained a new back injury and was adjudicated with total disability against the second injury fund. 
ALJ  Denigan
Atty:  Bobinette
Experts:  Volarich, Cantrell

In a fund only case, the Commission affirmed a load of 20% combining a primary back injury and two prior shoulder injuries.  Claimant was 63 years old and this was his third comp settlement on his back,  which was diagnosed with degenerative disc disease.  Ruch v Prairie Farms, DOLIR 7-10-2013.
ALJ Gorman
Atty:  Keefe, Toepke

In a  Fund-only case, the Commission affirmed a loading factor of 12 1/2% for a shoulder injury which combined with prior injuries to the spine and both knees.  The Fund offered no medical evidence to contest the claim.  Brading v Lincoln Industrial, DOLIR 5-2-2013.
ALJ  Boresi
Atty:  Maurer, Christianson
Experts:  Volarich

A loading factor is discretionary and widely variable among reported decisions.  In one case, an ALJ awarded a 50% load to "adequately compensate" the claimant and in another case awarded 30%.    Wright v Ford Motor, DOLIR 9-2-09; Hellman v Prairie Farms, 2012 MO WCLR Lexis 5.
ALJ  Vacca

Claimant worked as  a landscape technician who claims his duties caused plantar fasciitis and surgical tarsal tunnel syndrome.  The employer settled the case for 25% of the foot, and the case proceeded against the second injury fund, in which the commission corrected a math error and affirmed a 25% loading factor for a prior knee condition.  Chergivayev v Hortsmann Bros., DOLIR 7-14-11.
ALJ  Vacca
Atty  Wagner
Expert:  Musich

Tuesday, September 1, 2009

Repetitive trauma - benefits awarded




Claimant established that he became disabled from carpal tunnel in September 2013 and that Tarlton, his employer at the time,  was liable under the last exposure rule when he reported after working about six weeks operating a jack hammer and other equipment that his hands were killing him.  Sharp v Tarlton; C. Rallo Contracting, 2015 MO WCLR Lexis 15 (Feb. 10, 2015). 

The employer argued that thee job activities did not cause carpal tunnel, and if they did it was the previous employer's liability because he was diagnosed with carpal tunnel before he was hired.   The ALJ  concluded that diagnosis and discussion of surgical options prior to his employment did not control liability because claimant did not previously miss work or was unable to perform his job and that a mere diagnosis did not make the condition disabling. Claimant asserted that he was unaware of the prior diagnosis or recommendations and felt he had a pinched nerve.   Claimant testified he performed the duties of previous employment without difficulty. 

The ALJ found no persuasive evidence that claimant's prior employment was the prevailing factor in any disabling medical condition, and Tarlton's expert provided inconsistent opinions what work activities could ever cause carpal tunnel. He  criticized expert opinion that questioned the relationship of work activities and carpal tunnel that "runs afoul of years of accepted case law and learned medical literature."

ALJ  Ottenad
Atty:  Christianson, Patterson, Schmittdiel
Experts:  Schlafly, Rotman


Claimant established CNA duties for 12 years of changing duties, pushing an shifting patients was a prevailing factor in her bilateral carpal tunnel syndrome and overcame defenses that her obesity was a greater risk factor or she failed to establish her activities were sufficiently repetitive. The employer's expert was unable to diagnose CTS based on normal nerve conduction studies and questioned if the activities of a CNA could ever been sufficiently repetitive to represent a prevailing factor.  The award included about $18,000 in medical bills.   Warren v Alexian  Bros. Landsdowne Manor, 2014 MO WCLR Lexis 136 (Nov. 26, 2014).
ALJ:  Wenman
Atty:  Hale, Tobin
Experts:  Crandall
Treater:  Schlafly



The court of appeals affirmed an award for carpal tunnel syndrome. Brune v Johnson Controls, ED 101924 (Mo App. 2015).  2015 MO App. Lexis 231 (3-10-2015)

Claimant worked at D&H where he developed problems with his hands and wrists and then went to work at Johnson Controls in the assembly department for 7 years.  He developed bilateral carpal tunnel syndrome. 

The ALJ ordered a temporary award for treatment for carpal tunnel syndrome against Johnson Controls.  The Commission relied upon expert opinion of Dr. Schlafly. The court concluded that carpal tunnel is a known occupational disease and was not idiopathic in this case as asserted by claimant's expert.   Johnson Controls was the last employer to expose claimant to the risk of an occupational disease before he filed his claim in 2005.

The employer argued that the claimant failed to prove causation and the three month exception did not apply because claimant also had filed a claimant against D&H within 36 days of the time he started at Johnson Controls.  The court deferred to the commission to resolve causation disputes between competing experts. The court applied the pre-reform standard of the last exposure rule of "for which a claim is made" (now "prior to evidence of disability") and found no other employment leading up to the claim within the 3 month period.  The court considered a prior claim against D&H irrelevant because the only "claim" before it was against Johnson Controls.  

The court noted appellant's brief had deficiencies which it identified as "numerous", and lacked  "analytic value" by not fully applying the framework for sufficiency of evidence appeals.  The court declined to reframe a dispute between experts as a dispute of law to avoid its deference to the commission on findings of fact. 

Atty:  Christianson, Green
Experts:  Schlafly, Rotman
Judge:  Hess


A Burger King employee who states she spent 99% of her time working the food counter established her carpal tunnel flowed from her work, despite expert testimony from Dr. Crandall that claimant's work was not sufficient to reach proposed OSHA standards. The ALJ reviewed a DVD and concluded causation was "obvious" and ordered treatment in a temporary award. Kitchen v Mid-America Hotel Corp., DOLIR 10-14-10.


The Commission affirmed an award of 30% of each elbow to a 63 year old file clerk who developed carpal and cubital tunnel syndrome right before her retirement.  The ALJ described the duties as:  "Claimant used the database to locate  the file, or tube of drawings, and retrieved the file or drawings for the customer. When the customers finished with the files or drawings, they placed them in a basket for Claimant to re-file. The drawings were stored in three foot tubes, and Claimant rolled them up to return them to the tube. The file cabinets were very full, and it took a lot of force to pull files out.  During the last three to four years Claimant worked for Employer, she also helped transfer information into the new database. When she was not waiting on customers, she manually moved all inappropriately stored information out of the database and put it into the correct spot in the new database. In addition, Claimant worked on the project to scan drawings into a digital format. She slowly fed the drawings into the scanner, similar to copying a piece of paper."
In reaching the conclusion, the ALJ noted claimant produced an expert opinion which she found more persuasive than a causation opinion from a hand surgeon or from an ergonomist who observed claimant perform her duties.  Claimant sought reimbursement only of out-of-pocket expenses of treatment not paid by her group insurance.  Szigeti v Metropolitan Sewer District, 2014 Mo WCLR Lexis 112 (Sept. 16, 2014). 
ALJ:  Hart
Atty:  Cordes, Hilliker
Experts:  Woiteshek, Crandall, Zuccarello
Treater:  Howard

Claimant's work 9 years as a customer service representative at a gas company caused her carpal tunnel when she typed 90% or more of the time, based on a recent Commission decision, endorsing the opinion of claimant's family medicine expert and rejecting a causation opinion of a hand surgeon who considered keystrokes inadequate. Judge Vacca indicated keystroke data was unreliable arising from a subsequent less intensive job after claimant had already developed symptoms and dismissed the entire idea of keystroke analysis as not generally accepted in the medical community. Judge Vacca awarded 25% of each wrist, noting employer's expert Dr. Crandall did not tender a rating or alternative cause and sharply criticized his conclusions as "ridiculous" that the profession could not cause carpal tunnel.  Fink v Laclede Gas, DOLIR 11-3-09.

See also
 Dobbs v Jefferson Memorial Hospital, DOLIR 6-24-10.   Dr. Crandall, the employer's expert, reviewed a job description and testifies that claimant's job is not associated with carpal tunnel: "a histology technician can’t get carpal tunnel syndrome."

A customer service rep who answered phones for ATT received a temporary award for bilateral carpal tunnel, based on complaints that her symptoms began within a year of her employment. The administrative law judge noted claimant reported the height of the keyboard and absence of a wrist pad put "stress" on her arms, unlike other jobs where she performed similar duties. Claimant denied prior carpal tunnel syndromes during earlier periods of obesity that approached 400 pounds. The employer's expert based its denial on insufficient exposure to cause carpal tunnel based on an an OSHA report. Claimant answered 50-55 calls a day. Claimant stated she never counted keystrokes, but the administrative law judge concluded the estimate by defense expert of 155 keystrokes per customer was "unrealistic." The former employee noted that her expert spent more time with her and had better eye contact during the exam. Eaton v ATT, DOLIR 3-9-11.

ALJ Murphy
Atty: Evans, Taylor
Experts: Schlafly, Olinger
Treater: Deisher


A driver who asserts full-time duties driving a disability van and securing wheelchairs with straps caused carpal tunnel was supported by evidence and not against overwhelming evidence despite contrary medical opinions.  Harris v Bi-State Development, 2014 Mo. App. Lexis 295 (March 18, 2014).  The Commission reversed the original denial of benefits.
Experts:  Koo, Crandall, Schlafly
Treater:  Schlafly

The Commission reversed a denial of benefits to a driver for carpal tunnel, noting risk factors from driving and grasping wheelchairs for transportation.  Claimant had numerous risk factors unrelated to employment. Harris v Bi-State Development Agency,  2013 Mo WCLR Lexis 162 (August 23, 2013)
ALJ Carlisle
Experts:  Margolis, Crandall
Treater:  Schlafly

Claimant worked 16 years driving a bus and established opening a door during 89 daily stops was the prevailing factor in her shoulder bursitis and need for treatment in a temporary award.  The only orthopedist to testify related to the condition to arthritic spurring and os acromialeChrismer v First Student, 2012 Mo WCLR 12 (Feb. 8, 2012)
ALJ  Schaefer
Atty:  Christianson, Wright
Experts:  Lichtenfeld, Emanuel



Claimant's testimony and opinion from his retained expert that his job duties lifting 20-40 drums a day established with reasonable probability that his work duties caused cubital tunnel syndrome, despite a job analysis and video that suggested his activities were less intense. Administrative law judge Vacca awarded 35%, the rating from claimant's expert, and on his own awarded disfigurement although it was not stipulated issue at hearing.  McDonald v Bi-State Development Agency, DOLIR 9-29-09.


The Commission affirmed an award that claimant's job duties as a casino worker such as turning a key and moving chairs were a cause in her carpal tunnel and awarded treatment and found the claimant's description of job activities more accurate than a job description provided by the employer.  Slusarczyk v Ameristar Casino, 2013 Mo WCLR Lexis 190 (Sept. 26 2013).


Claimant in a temporary award established that typing police reports for five years caused her carpal tunnel and Guyon's canal entrapment.  The Commission concluded the employer failed to produce other credible potential causes or persuasive medical evidence the condition more likely arose from sleep position. Lane v City of Independence, 2013 Mo WCLR Lexis 138 (August 1, 2013).
ALJ McKeon
Atty:  Wieland, Deane
Expert:  Stuckmeyer, Rosenthal

The Commission found claimant's typing duties a prevailing factor in her bilateral carpal tunnel, affirming a temporary award for benefits, despite other risk factors such as gender, weight, and age. The Commission majority modified an award, that erroneously applied an older and easier causation standard of "substantial factor." A dissenting Commissioner found exposure insufficient and less than a typical typist based on a medical history that claimant was a "hunt and peck" typist, despite her testimony that she was a "hunt and peck" typist only some of the time. Vrabel v Aramark Services, DOLIR 2-23-11.

ALJ Vacca
Experts: Rotman, Howard, Brown


The Commission affirmed a temporary award for carpal tunnel as a result of hand intensive activities involving jackhammering.  The ALJ felt the defense doctor relied upon a less accurate history regarding the extent of these duties and was not credible when he first found the condition related and then changed his opinion after reviewing a job description.  Phillips v the Doe Run Company, 2013 MO WCLR Lexis 166 (August 30, 2013). 
ALJ Robbins
Atty:  Corrigan, Symank
Experts:  Schlafly, Brown


The Commission awarded benefits for bilateral carpal tunnel syndrome to a prison guard who opened and closed locks 95-200 times a day.  The ALJ found repetitive trauma to both wrists, rejecting a defense that claimant's condition more likely arose from obesity.  The  surgeon attributed claimant's right carpal tunnel to a single traumatic event rather than repetitive trauma and disputed causation on the left side.   Cerutti v Mo Dept of Corrections, DOLIR 3-28-2013.  The Commission affirmed the award, after correcting a typographic error concerning the body part. 
ALJ  Kasten
Atty:  Van Camp, Johnson, Nelson
Experts:  Schlafly, Strecker, Brown
Treater:  Strecker



Claimant worked periodically in the fabrication department for 1/2 year and developed epicondylitis and radial synovitis.  The ALJ found the employer's expert had incomplete information about claimant's job duties although an ergonomic study was in evidence.  The employer denied claimant's case based on "outside" activities although its expert was unable to conclude activities such as bow hunting caused the condition.  The Commission found the report of the employee's expert was not a model of clarity or precision.   Mortimer v Harley-Davidson, 2013 MO WCLR Lexis 239 (Dec. 23, 2013)
ALJ Meiners
Atty Stacker, House
Experts:  Poppa, Lingenfelter


Claimant worked as a housekeeper for 21 months and cleaned 8-10 apartments a day and established her work duties to be the prevailing factor in her carpal tunnel and epicondylitis in a temporary award.  A hand expert found the work contributed to her condition, but she had other health risk factors. Shrinkle v the Fountains of West County, 2012 MoWCLR 17 (Feb. 8, 2012).
ALJ  Lane
Atty:  Fox, McHugh
Experts:  Schlafly, Brown



Claimant asserts he operates a pedal with his foot to cut parts while working for the defendant for about a year. ALJ Kasten awarded 7 1/2% PPD and found claimant established a work-related condition: "I find that the employee’s work activities and job duties was the prevailing factor in causing the resulting medical conditions and disability of tenosynovitis of the right ankle and Achilles tendon; disorder of the synovium, tendon and bursa; overuse syndrome of the right Achilles tendon; overuse peripheral nerve injury; and overuse tendonitis of the right foot." Dr. Burke, the employer's expert, found no objective findings on exam. Dr. Berkin, claimant's expert, had assessed 15% disability. The case is Bartlett v Siegel Roberts Automotive, DOLIR 9-1-09


Claimant asserts working 10 years as a sales manager caused her to develop plantar fasciitis from working on concrete, stocking, climbing on ladders and standing tip-toes.  The employer disputed the extent of activities on her feet and relied upon an expert opinion from a foot specialist that plantar fasciitis was idiopathic.  The ALJ awarded benefits and found that claimant's intervening fracture did not diminish her right to claim TTD benefits following surgery.  Reisa v Kellogg Co., 2015 Mo WCLR Lexis 99.
ALJ  Ottenad,  Experts:  Woiteshek, Aubuchon



Claimant alleged occupational disease to her left shoulder resulting in bursitis and possible tendon tear, arising from manufacturing surgical cushions (Omnis), a job that required her to remove them from molding and kneed them to soften them. Judge Ruth granted a temporary award for benefits, noting the presence of a degenerative type 3 acromion, documentation of some tendonitis findings in the past, and job duties that did not involve overhead work did not preclude recovery. Judge Ruth concluded defense expert, Dr. Milne, was found to over-rely on the absence of overhead duties to deny causation, noting that overhead duties were the more common etiology. The case is Chepely v Meramec Group, DOLIR 7-1-09.

A career 32 year employee developed rotator cuff tears from lifting and attaching light weight plastic car parts, reversing a denial of benefits by the ALJ.  The Commission suggests a shoulder surgeon relied upon arbitrary standard  not based on research that claimant  needed to handle heavier items or perform more overhead activity before considered the injury as  work related.  Buchanan v SRG Global, 2014 Mo WCLR Lexis 134 (Nov. 21, 2014)
ALJ: Strange
Atty:  Heckelmeyer, Shelledy
Experts:  Woiteshek, Emanuel

Claimant established occupational disease to both shoulders from repetitive lifting as a result of 30 year career as a sheet metal worker resulting in rotator cuff tears.  The Fund contested occupational disease and argued that no fund liability attaches for occupational disease.   The ALJ suggested claimant follow up care with Dr. Yamaguchi and noted vocational testimony that claimant's long union membership might be an impediment to apply for work with a non-union employer.  Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6, 2012)
ALJ  Boresi
Atty:  Christianson, Lassa, Barnard
Experts:  Emanuel, Lichtenfeld, England, Dolan

Job activities lifting carpet bunks, 40% overhead work, up to 70 pound boxes at 6 foot height found to be prevailing factor in friction of bone against rotator cuff.  Employer offered no evidence of equal exposure outside of work.  Gilligan v Bass Pro, 2011 MOWCLR LEXIS 212.
ALJ  Holden
Atty:  Wise
Experts:  Schlafly

The administrative law judge awarded 65% disability for a twice operated left shoulder, allegedly injured from repetitive job duties.  Claimant received a PTD award against the Second Injury Fund because she had prior restrictions, and required a "multitude" of medications.  She had prior settlements on both wrists and her back.  The Fund offered no medical experts to contest the allegations. Powell v General Motors Corp., DOLIR 7-19-2011. 
ALJ Gorman
Atty: Rauscher, Daiber
Experts:  Hanaway, England, Blaine, Nogalski


A career 30 year maintenance supervisor established his varied job duties caused a rotator cuff tear in a 2-1 decision, reversing a denial of benefits by the ALJ.  Bowyer v Mineral Area Community College, 2013 Mo WCLR Lexis 145, August 8, 2013. 
ALJ  Robbins
Atty:  Butler, Kraft
Experts:  Ralph, Nogalski



Claimant establishes repetitive work caused cervical disc protrusion and ALJ rejects neurosurgeon opinion that cervical pathology required an accident.  Award includes nearly $70,000 in disability benefits and about $40,000 in medical bills mostly from a pain clinic.  Buffington v Hubell Killark Electric, 2015 MO WCLR Lexis 31 (April 9, 2015)  Future medical was denied. 
ALJ Landolt
Atty:  Niessen, Herschell
Experts:  Volarich, Crandall


Claimant is a  36 year old terminated forklift operator who was awarded treatment in a temporary award for his neck for a condition that was essentially never treated, and became worse after he stopped working. Harris v Penske Trucking, 2015 Mo WCLR Lexis 13 (Feb. 10, 2015)

The ALJ indicated the case revolved around competing causation opinions of two neurosurgeons and adopted the opinion of claimant's expert that the worker turned his neck frequently on a daily basis for 4 years and this activity was a "mechanical mechanism" to narrow the foramina and cause a cervical  disc to become displaced.  The ALJ regarded claimant's symptoms about the neck as credible even though it found no medical evidence to support claimant's other "total body' complaints.

This Award "contemplates the medical causal connection of the C4-5 disc displacement,  and the effects/complaints caused by that displacement." The ALJ notes this included an award for surgery for 'displacement' but not necessarily for disc herniation.   The claimant had a disc 'bulge' when he stopped working for the employer and the employer argued that a 'bulge' was  a degenerative condition and disputed liability for a disc herniation and radiculopathy  identified at the same level about 2 years later.   The employer's expert appears to indicate that looking behind on a daily basis would not herniate a disc.
Atty:  O'Sullivan, Lemp
Experts:  Matz, Berkin, Kitchens


Claimant established that working as a carpenter and handling heavy drywall in a 2008 claim was the prevailing factor in his c6-7 disc herniation, resulting in a temporary award for further treatment.  Claimant's expert indicated that a disc herniation usually takes a traumatic event but related the condition to repetitive trauma.    The medical records did not identify an accident or a precipitating  event.  The ALJ concludes the herniation arose from repetitive trauma. 

The ALJ criticizes the defense expert:  "Dr. Chabot repeatedly justifies his causation opinion with the lack of medical documentation of a work injury or duty causing complaints in 2008. Claimant cannot be held accountable to report he had sustained an occupational disease until a medical expert has made a causal connection between the medical condition and a work-related activity. Claimant was not diagnosed with an occupational disease until well after his 2008 treatment."

Claimant satisfied his notice obligation by telling his employer he would treat his symptoms outside the worker's comp system, and he had no duty to report a repetitive trauma until after a physician told him the condition flowed from his job. Meadows v John Bender, 2012 Mo WCLR Lexis 137 (July 3, 2012)
ALJ Hart  (affirmed 2-0)
Atty:  Barnett, Weller
Experts:  Volarich, Chabot
Treater:  Weatherington


A 57 year old claimant alleges that overhead duties pulling electrical wire aggravated his cervical disc disease. Judge Allen concluded the claimant was not "anywhere near" totally disabled, but award 10% disability. Lewis Daniels v VR&S Electric, DOLIR 4-29-10.


Claimant's job involved putting took plates onto the line and put them into a machine, and she handled about 1000 plates her hour for several years.  Her employer told her she had to treat on her own and she received injections in her shoulder for 'chronic pain syndrome' and reported she was unable to use her arm.  She was diagnosed with a labrum tear, carpal tunnel and a neck injury.  An expert conclude she required surgical consultation for her neck and shoulder.  The ALJ ordered treatment and found the employer never offered claimant any care, that someone other than the claimant checked her FMLA form as "not work related" and they fired claimant for reporting to work 5 minutes late when her power was out.  The employer's expert was disregarded because he provided no opinion about repetitive activity other than to conclude claimant did not have a specific accident or identify a mechanism of injury.  The employer was ordered to provide further care in the temporary award along with about $24,000 in back unpaid disability benefits concerning claimant's loss of income after the employer fired her.  Fatting v Johnson Control Batteries, 2015 Mo WCLR Lexis 17 (Feb. 13, 2015).

The Commission affirmed without an additional opinion. This is a similar rationale used for rejecting defense testimony in Harris v Penske Trucking, 2015 Mo WCLR Lexis 13 (Feb. 10, 2015).
ALJ  Miner
Atty:  Kelly, Bates
Expert:  Hopkins, DiStefano


Claimant established repetitive trauma opening car hoods 150+ times daily during an inspection job for about 4 months caused the need for a C4 fusion, rejecting the employer's contention that claimant's pain complaints were coincidental and flowed from a prior C5-C7 nonunion. Claimant asserts she worked 2 years after the prior surgery and had new pain complaints after the inspection job. The administrative law judge awarded permanent total disability benefits against the second injury fund. Batton v Daimler Chrysler, DOLIR 8-12-10.

But See Basler v Bausch Lomb, DOLIR 3-3-10. (failed to prove "persistent flexion" caused need for neck fusion.)


EMT work found to be the prevailing factor in an inoperable rotator cuff repair and disc herniation IN a 2-1 decision, reversing a denial of benefits.  Yarbrough v Rural Metro Ambulance, 2013 Mo WCLR Lexis  143   The employer offered medical testimony disputing accident and finding claimant's condition more likely due to aging, smoking and genetics.  The Commission the expert, however, incongruously apportioned some permanent disability to work and another defense expert had not ruled out occupational disease as a cause.   Claimant contends he was mostly asymptomatic following a previous fusion at the same disc level. 
ALJ  Kasten
Atty: Thoenen, Heckemeyer
Experts:  Woiteschek, Randolph, Colle


Claimant's job duties lifting 300-400 cases of soda contributed to claimant's need for a 2 level lumbar fusion performed by Dr. Trecha and worsened his degenerative spondylosis, resulting in an award of 40% PPD. Judge Herschel rejected the contention that claimant, 53, was permanently totally disabled since he had "manageable" work restrictions and was able to work on part-time basis. Claimant's assertion that work-hardening and therapy caused additional injuries to his neck and abdomen (hernia) were denied, however, as unwarranted "leaps of faith" when claimant failed to introduce contemporaneous medical record and relying upon expert testimony 3 years later from Dr. Cohen. The case is Daly v Powell Distributing, 9-1-09.

Claimant described back symptoms after carrying a ladder and using a rope to lift loads weighing more than 40 pounds, although apparently did not report a specific event to his employer. Claimant had a history of limited treatment in the past for his back, but the employer did not establish a prior annular tear. ALJ Fowler found the employer waived its right to direct care and ordered care through a specific doctor selected by claimant. Miller v Cornerstone Services, DOLIR 9-28-10.
ALJ: Fowler
Experts: Poppa

claimant established permanent total disability arising from a disputed repetitive trauma to his back, knees and shoulder from climbing on a sweeper several times a day.  Claimant was a 34 year employee until the company closed and moved to China.  Braggs v Federal Mogul, DOLIR 8-17-11. 
ALJ Carlisle
Atty:  Wolfe, Osborne
Treater:  Yamaguchi
Experts:  Cohen, Cantrell