Tuesday, October 5, 2010

Trial stipulations limit scope of disputed issues

"New Evidence" denied on appeal for issues outside scope of stipulated issues

Claimant seems to argue after the hearing  he discovered he  needed new evidence  on a necessary element of the case and attempted to introduce it on appeal under the rule to allow newly discovered evidence.  The Commission rejected the idea and affirmed a denial of SIF benefits for wage loss.McDaniel v Furniture for Less, 2016 Mo WCLR Lexis 12 (Feb. 4, 2016).

The record noted that the parties stipulated that the claimant was an "employee" but never stipulated that the  "employer" had sufficient numbers of employees to trigger fund benefits. 

The Commission rejected the Fund's motion to dismiss the appeal for not complying with the regs to state specifically the reason the findings and conclusions were wrong.  The Commission noted it allowed the appeal on the merit, but noted that the application  only  "minimally satisfied' the requirements. 

ALJ Fischer

Stipulation to amount of TTD precludes appeal of issue by employer

The employer disputed TTD on appeal.  The  Commission indicated that the employer could not dispute the amount of TTD, based on any alleged miscalculation, if it had already stipulated to the lump sum  at the beginning of the hearing.  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84 (June 18, 2014)
ALJ Denigan

Fail to raise issue of a credit from a prior settlement waives issue
Claimant fell and hurt her knee and received an award to her back for worsened back symptoms following her 2011 accident and use of a knee immobilize for several weeks.   The Commission noted that claimant was trained as a nurse and  jousted with the attorney to describe her many shades of pain including distinctions between discomfort, spasm, stabbing, pinching and radiating in a way no ordinary person would describe it.  Harris v Columbia Staffing, MO WCLR Lexis 233 (December 19, 2013). The case is important regarding the scope of review and limits on a judge's powers based on stipulated issues.   The employer asserted it was entitled to a credit from an award in Kansas against any PPD owed and the Kansas award was attached as part of the record.  The Commission, however, reversed concerning finding of  a credit and concluded the employer waived any right to a credit because it was not raised as a disputed issue.  Further, the Commission found no stipulation that benefits had been paid pursuant to the earlier award.   Similarly, the commission noted there had been no stipulation to the nature and extent of TTD, and it would not address the issue sua sponte when the issue  had not been preserved on appeal.    "Where no party has requested relief, we are reluctant to engage in the sua sponte action of enlarging the scope of issues on appeal. This is especially true in this case, where employer appears to agree that the administrative law judge determined the appropriate time period of temporary total disability."  

 ALJ Siedlik
Atty:  Fox, Doyle, Seliga
Experts:  McNamara, Egea

Stipulation of accident in answer binds employer
The employer admitted claimant had an accident at work going up some stairs and attempted to file an amended answer an hour after the hearing in a temporary award started.  The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident.  In the case, the ALJ awarded treatment for a back, even though the experts disputed whether or not a herniation was present.  Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013)
ALJ  Dierkes
Atty:  Kiefer, Floros
Experts:  Robson, Chabot

Stipulation of accident undermines expert's opinion
The Commission reversed a denial of benefits to a 60 year old clerk who moved a desk in his job with the House of Representatives, described acute neck pain, and underwent a C5-C7 fusion which still left unresolved neck pain and radiculopathy.  Connor v Mo House of Representatives, 2013 Mo WCLR Lexis 141 (August 7, 2013).   The ALJ found claimant failed to prove causation when he did not obtain treatment for three months.  The Commission essentially found the defense expert over-relied upon the absence of documented medical history to dispute accident as the employer had conceded accident as a stipulated issue.  The Commission also a radiologist suggested that claimant had a traumatic injury.
ALJ:  Fischer
Atty:  Holwitt
Experts:  Meyers, Reinsel
Treater:  Byam

Stipulation alleviated obligation to prove synergy
In a fund case the SIF and pro se stipulated to disability but did not stipulate to synergy.  The ALJ found

"Given the fact the primary and preexisting disabilities are to the upper extremities, and to different parts of the same extremity, I find there is sufficient evidence to establish that the combination of the disabilities is greater than the simple sum."

A dissenting commissioner found that the ALJ unsuccessfully attempted to solicit testimony from the pro se claimant to establish synergy as there was no medical evidence addressing the issue and considers the majority "ignoring reality"  the claimant failed to establish this element of proof. Cassell v Dierbergs, DOLIR 6-27-2013.

ALJ Boresi.
Atty:  pro se, Barnard


In a claim against the second injury fund for benefits, claimant agreed to waive any claim for PTD benefits in exchange for the Fund's agreement "not to contest" the synergistic effect between the prior injury and primary injury. The Commission denied benefits, in part, when claimant offered no evidence of synergy to prove the Fund claim and found an agreement "not to contest" was not the same as an agreement that synergy existed. Stipulations are controlling and conclusive and the courts are bound to enforce them. The dispute arose because the stipulation was not clear. The court of appeals found the Commission misconstrued the intent of the parties and the terms alleviated claimant of the obligation to produce additional evidence of synergy. The case was remanded on other grounds for the Commission to make a finding on the degree of pre-existing disability. Hutson v Treasurer of Missouri as Custodian for the second injury fund, 2012 Mo. App. Lexis 502 (ED April 17, 2012). On remand, the Commission found pre-existing impairment did not reach statutory thresholds to award fund benefits. 2012 Mo WCLR Lexis 114 (June 15, 2012).

In a Fund case, the ALJ erred in his finding that the Fund stipulated to a synergistic effect and the Commission reduced the award against the Fund from 80.64 to 18.6 weeks finding the award was "excessive."  Jones v Special School District, 2012 MO WCLR Lexis 204 (December 6,  2012).
ALJ  Denigan
Expert:  Margolis

Claimant alleges the employer paid TTD benefits through December 2009, that the employer stipulated the MMI was October 2009, and the ALJ erroneously asserted a credit based on a finding of MMI in December 2007.  The issue in this case is if the employer could assert a credit against PPD for over-paid TTD benefits.  Claimant had a multi-level neck fusion in 2006 and a right shoulder surgery in 2007, but claimant  underwent further MRI/arthrogram studies of the shoulder in approximately October 2009.  The ALJ documents extensive pain management.  The Commission  found no stipulation existed on the date of MMI even though the employer stated that he "may think" that MMI was October 2009 because the testimony was not a "definitive stipulation."  The ALJ ultimately found that claimant had a previous neck surgery, less than a year later he reinjured his neck and shoulder when he was jerked around in the cab of a scaler, and he sustained partial disability against the employer and total disability against the Fund.  Prier v Doe Run Company, 2012 MoWCLR Lexis 174 (September 27, 2012).  The takeaway from the case is a stipulation is not a stipulation unless parties call it a stipulation.  The ALJ had allowed a stipulation that the claimant would testify in conformity with his statements to Dr. Volarich in lieu of re-opening the case.

ALJ Robbins
Atty:  Lory, Seufert
Experts:  Volarich, England,
Treaters:  Boland, Hulsey, Guarino

A stipulation regarding PTD rate is controlling and conclusive, even though the Commission discussed other evidence such as a report of injury which might support a higher rate. Claimant was awarded PTD benefits against the Fund and proposed on appeal two different higher PTD rates although he stipulated to a lower rate at the hearing when he asserted there was no difference between the PPD and PTD rates. The ALJ left the record open for additional evidence and no evidence was presented to the Commission that the report of injury was unavailable at the time of the original hearing. Gilbert v Brundage Bone Concrete, 2012 Mo WCLR Lexis 163 (August 29, 2012)

ALJ Mahon
Atty Cummings
Experts Bennoch

A stipulation regarding disputed body parties is controlling and  a party cannot add disputed body parts at trial when the issue is not identified prior to the hearing.  Claimant asserts that the Commission wrongly denied him benefits for carpal tunnel arising from his use of crutches for a 2002 ankle fracture because he presented a causation opinion and ratings from his expert, Dr. Schlafly. Dr. Sudekum, the employer's expert, agreed with the diagnosis of bilateral carpal tunnel syndrome but attributed the condition to arthritis. The court of appeals stated that injuries to a specific body part must be presented to the ALJ. The court reports that claimant pled injuries to the "neck, wrists and ankles" as a result of a 2002 accident and introduced medical evidence to litigate the issue but the Commission properly denied benefits to the left wrist because claimant "did not claim injury to his right wrist before the ALJ, but only specifically to his left wrist, caused by the April 27, 2002 work accident. He did allege on review to the Commission that he had bilateral carpal tunnel syndrome that had not resolved, and therefore was disabled in both wrists. "
The court of appeals in Poole v City of St. Louis, ED 94052 (Mo. App. 10-5-10),  affirmed the Commission's denial of permanent and total disability benefits, but remanded on a denial of future medical care because the Commission summarily denied future medical care without explanation and did not distinguish between Dr. Volarich's opinions for future medical care for radicular pain (found caused by a subsequent accident moving a mattress) and care for "back pain syndrome" that might be work related.

The ALJ erred awarded a higher load factor than stipulated by the parties.  Neff v Fulton State Hospital,    2011 MO WCLR Lexis 247.
ALJ  Zerrer
Atty:   Kieffer 

The ALJ lacked authority to decide "accident" when both parties stipulated to existence of an accident.  McCoun v OPAA,  2012 Mo. WCLR  Lexis 6 (2-1-12)
ALJ  Allen

The ALJ erred find a disputed issue when the parties stipulated to occupational disease for an employee who installed floors for 9 years.    Vance v Blake Flooring, 2009 MO WCLR Lexis 108.
ALJ  Vacca

Disfigurement award affirmed when claimant showed scar to judge, but disfigurement was not a stipulated issue. McDonald v Bi-State Development Agency, 2009 MO WCLR Lexis 180.
ALJ Vacca

A stipulation or finding of disability of MMI must be consistent with the records.  For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date.  Gruendler, ec.  v Union Camp Corp., 2010 MO WCLR Lexis 127.
 ALJ Hart

A stipulation must include the amount of prior disability.  In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits.  Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.
ALJ  Magruder