Wednesday, September 2, 2009

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