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.