Thursday, November 11, 2010

SIF defenses

Post Accident Worsening
Claimant did not prevail in his second injury fund claim when the primary settlement for hernia did not reach the statutory threshold and any PTD flowed in part from post-accident worsening of pre-existing conditions.  Claimant's prior settlements for various injuries represented 96% BAW.  The ALJ notes the case involves pre-reform liberal construction to establish a primary injury of hernia from a series of events.  Hager v Steelwood Equipment, 2012 Mo WCLR Lexis 151 (August 2, 2012)
ALJ  Kohner
Atty:  Edelman
Experts:  Poetz, England, Cohen, Cantrell

Claimant's vocational expert fails to differentiate post-accident worsening in a claim of permanent total benefits.  Rowe v Barnes Jewish Hospital, 2012 MO WCLR LEXIS 66.
ALJ Ottenad
Atty: Merlin, Frazier
Experts:  Stillings, Berkin

Claimant failed to prove a compensable PTD claim because unemployability flowed from post accident worsening of her neck to become a candidate from fusion and worsening of diabetes. The ALJ found claimant went back to work for about 1 1/2 years from her back strain answering phones, and such work based on lifting restrictions was accommodated and considered employment in the open labor market. Lewis v KU Medical Center, DOLIR 3-31-11.
 ALJ: Meiners Atty: Hill Experts: Koprivica, Titterington

Claimant convinced an administrative law judge that her MS rendered her unemployable, but failed to show her PTD flowed from a combination of primary osteochondral knee injury and pre-existing conditions, and not from post-accident worsening. Experts did not support the statutory requirement for a synergistic effect when the MS condition alone was of such a magnitude to render claimant unemployable. Hill v The Boeing Company, DOLIR 11-4-10
 ALJ: Ottenad
 Atty: Gault
 Experts: Cohen, Kramer
 Treaters: Dr. Ma, Dr. Kos

Claimant established he was unemployable but did not prevail in a PTD claim against the Fund due to post-accident worsening of orthopedic injuries.  In addition he developed other serious non-occupational medical conditions. Claimant was unable to participate in the hearing because he was in hospice for stage four medical condition. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014). 
ALJ:  Landolt
Atty:  Monticello, Hudson
Experts:  Cohen, Pelikan, England

Statute of Limitations
A "claim" for purposes of reviewing a statute of limitations defense under 287.430 includes both a claim for compensation and a settlement, according to the western court of appeals, finding a claim against the second injury fund filed within a year after a settlement with the employer was timely. The decision follows a similar interpretation in 2009 in the Eastern District. The case is Treasurer of the State of Missouri v Phillip Cook, WD 72019 (Mo. App. 10-26-10). The court found the Fund's attempt to base its argument based on dictum is not persuasive. The Commission reversed an initial denial based on the SOL defense.

The second injury fund argued the award for PTD in a 2003 case was not supported by substantial evidence, but offered no evidence from any vocational or medical experts to rebut testimony from Dr. Stuckemeyer and Mary Titterington. Claimant was 64-years old and had an 8th grade education and the Commission found claimant not employable in the open labor market based on his primary settled injury involving a 20% right shoulder and prior conditions rated by Dr. Stuckmeyer for the same shoulder, the left shoulder, plantar fasciitis, back, and a heart problem. How these earlier conditions impaired claimant's capacity to work beyond limits from his education and age is not entirely clear in the opinion. The court deferred to the Commission that claimant was credible that attempts to return to work were a "real struggle" and that claimant's return to work after his primary work injury was not decisive whether or not he could compete in the open labor market.

The Second Injury Fund denied liability for a SIF claim made about a year after claimant settled with the employer and the settlement language of the original contract indicated claimant released the second injury fund from all liability. Noting the Fund was not a party to the contract, the court of appeals found the Fund lacked standing to enforce the waiver in Grubbs v Treasurer, ED 92457 (Mo. App. 12-1-09). The court further rejected the Second Injury's Fund defense under the statute of limitations and found a "claim" was not always a WC-21 claim form, but could also be construed to mean the settlement itself for purposes of starting application of the 24 month statute of limitations. Claimant did not file a claim until 26 months after the original accident date.

In Cook v Calmar, DOLIR 1-14-10, the Commission followed Grubbs and reversed a denial of benefits, based on the same SOL defense when the claimant filed a claim against the fund 1 month after settling the case against the employer. The Fund produced no other medical or vocational evidence, to contest the claim, and ultimate award, for permanent and total disability arising from a 2003 accident.

Unjust enrichment

The claimant was awarded $254,700.20 in unpaid medical bills following two months of treatment for lung and head injuries as a result of falling off of a scaffold while working for an uninsured employer. The Fund did not raise any objections or offer any evidence at the hearing, but on appeal to the court of appeals disputes it should pay the award directly to claimant since the claimant might compromise the bills and use the balance as a windfall. The court clearly rejects the argument in Skinner v. Donna Morgan, SD No. 30019 (Mo. App. 3-8-10), finding strict construction and prior case law of Wilmeth v TMI Inc reject such a defense as unfounded and "conjuring a speculative scenario."

Appeal - failure to use exact statutory language in decision is not reversible error

Claimant injured his knee and sustained 15% new disability as a result of a meniscus tear, and received an award for permanent and total disability against the second injury fund because of prior conditions including multiple previous injuries to the same knee, the opposite leg and other conditions. The administrative law judge rejected opinions of Dr. Randolph who testified for the Fund that claimant never had any disability from his last accident and his impairment flowed from prior osteoarthritis. The Commission found evidence that claimant's last accident had caused a new 'medical condition', even though the administrative law judge did not use the phrase 'medical condition' in its findings. The court of appeals concluded that the failure to track the specific statutory language was not reversible error, and noted the Fund failed to provide any legal reasoning to support its proposition. Savage v Treasurer of Missouri as Custodian of Second Injury Fund, ED 93869 (Mo. App. 4-27-10).

No threshold amount

The commission modified an award against the second injury fund, increasing it from $18,180.60 to $23,539.33, finding claimant's primary foot injuries from standing on concrete synergistically combined with his prior asthma, sinusitis, and psychiatric issues to cause additional fund disability. The administrative law judge deemed such pre-existing conditions too minimal to award disability. Claimant, 38, had prior workers compensation settlements and pled claims against the second injury fund ranging from ringing ears to gastric issues. Claimant failed to prove repetitive trauma injury to his neck in a companion case when expert testimony was inconsistent with medical records. Dodson v von Hoffman Press, DOLIR 9-23-10

ALJ Fischer
Atty: Christiansen,
Experts: Lichtenfeld, Hogan