Tuesday, August 31, 2010

PPD Defenses: Failure to Allocate

The claimant  failed to allocate what disability, for purposes of second injury fund liability, existed at the time of the primary accident and what disability flowed from post-accident worsening.  The Commission modified the award, appealed by the Fund, and reduced the award by about 3 weeks.  Faerber v Schwan's Food Industries, DOLIR 4-17-2013. 
ALJ  Landolt
Atty:  Weigley
Experts:  Musich

The claimant established that he sustained "some" psychiatric and cervical injuries when a trench collapsed, but his medical evidence did not support an award for those conditions due to the failure to allocate disability. Schmidtt v City of St. Louis, DOLIR 3-26-2013.

ALJ: Ottenad
Atty: Morgan, Tanner
Experts: Sky, Magrowski, Meyers, Musich, Bassett, Kostman

The Commission reduced an award of 22 1/2% to 6% for a knee injury when claimant's expert failed to allocate disability between two knee injuries. Dye v Lafayette County, 2012 Mo WCLR Lexis 199 (Nov. 21, 2012). The Commission noted the ALJ had not provided analysis and findings on this particular issue as only one case was before the court.
ALJ Mieners
Expert: Stuckmeyer
Treater: Wise

Claimant is a 50-year old poultry plant employee who alleges she injured her back in 2003 when she fell backwards while putting on a booty and hurt her back again in 2005. She returned to the plant following her October 2006 back surgery until the plant closed in 2008, and then claimed she was unemployable due to chronic back and leg pain. ALJ Holden awarded 15% disability based on a rating from her expert, Dr. Bennoch, for a head injury but noted claimant's expert failed to apportion whether the 2003 or 2005 accident caused her back disability. Dr. Bennoch indicated that "some" disability flowed from both accidents, and originally attributed all the disability to the first accident. Claimant reported after the first accident she was essentially pain free. Dr. Woodward identified 12% for the "work-related condition."  Crank v Willow Brook Foods, DOLIR 1-21-10.

In Moll v Martin Marietta Materials, DOLIR 3-17-11, the Commision found that claimant's expert allocated 0% disability pre-existing to the back based on claimant's denial of symptoms, and reversed a finding that claimant had failed to allocate prior and current disability to the back. The Commission award 22 1/2% of the back for claimant's alleged injury to 2 disc bulges with nonradicular lumbar syndrome, following an incident when claimant stated she was driving a truck and she hit a ditch in the road and bumped her head. Claimant had undergone a two level cervical fusion following the incident, resulting in an award of 27 1/2% BAW.

ALJ Robbins
Atty: Rice, Dietrich
Experts: Volarich, Chabot
Treater: Gibbs

In Shelton v Missouri Department of Public Safety, 2013 MO WCLR Lexis 11 (January 23, 2013) the Commission affirmed a denial of benefits.  Claimant alleged he hurt his back in 2009 lifting a patient but his expert was unable to allocate disability between two separate accidents and was found to lack credibility when he changed his opinion during testimony.  The commission chided:  "It appears the question [of disability] is beyond his expertise or ability" and found no disability in the case based on the opinion of the defense expert.
ALJ  Denigan
Experts:  Musich, Randolph 

A registered nurse bumped her knee, developed an acute lateral meniscus tear, and underwent a total knee replacement but failed to prove she had any disability flowing from her accident, according to the recent Commission decision, Tillotson v St. Joseph Medical Center, 2010 Mo WCLR Lexis 138. Claimant failed in her proof of disability, even though she established both accident and an acute change in pathology.
Claimant's specific failure of proof arose from lack of expert opinion allocating disability between new and old knee pathology. Claimant's expert related the TKR to the accident. The administrative law judge found claimant's TKR flowed from prior arthritis and not from her acute meniscus tear, and that the TKR would not have occurred but for the prior arthritis. Neither claimant's expert nor any other expert specifically addressed what amount of disability related solely to the new lateral meniscus tear. The administrative law judge acknowledged any allocation of permanent disability for a meniscus tear was "very difficult" to assess, as the entire meniscus was subsequently removed as part of the total knee replacement.

ALJ: Mueller
atty: Gorden, Christiansen
experts: Koprivica
treater: Berghe

By comparison, Florida has an apportionment statute, 440.15(5)(b), that allows the employer to pay only the portion of disability and future medical care associated with the injury, but it requires the employer to show pre-existing conditions flowed from non-industrial conditions.  Staffmark v Merrell, 43 So.3d 792 (Fla. 1st DCA 2010).