Friday, December 16, 2011

Editorial: Ten Cases in 2011 for Employers to worry about

Worker's compensation reform may not have had the effect many people intended.   Whenever the court of appeals comments on legislative intent it based on "strict construction" reminds me of the  scene  in Annie Hall when a professor in front of Woody Allen is  discussing the true intent of  Marshall McLuhan's work when  Allen pulls  McLuhan out  of no where to state  that's not what he meant at all.

1. Occupational Disease.
         Worker's comp is not an exclusive remedy to worker's compensation, based on strict construction.
KCP&L Greater MO Operations Co. v Hon Cook, 353 S.W.3d 14 (Mo. App. 2011).

2.  Prevailing factor doesn't apply to medical treatment issues.
          Surprise!  An employer who admits accidental injury must argue now whether a treatment is reasonably related. Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011).  Gordon, we hardly knew ya.

3.  Claimant dies but the checks keep rolling on.
          The legislative "fix" didn't fix Schoemehl to anyone having a pending claim.  Goad v Treasurer of State-Second Injury Fund, 2011 Mo App. 1552; affirmed 2012 Mo Lexis 186 (Aug 14, 2012).
The defense that claimant had to die before the "fix"  for benefits to "vest" doesn't fly.

4.  Subjective v.  Objective, Objective now loses.
         The legislative fix to give objective evidence more weight now goes away without "objective" tests to measure "subjective pain."  Huh?  Bottom line:  those FCEs are a lot less important now to define work restrictions.  Reicardt v Industrial Sheet Metal Erectors, 2011 MO WCLR Lexis 226 (11-10-11).

5.   Getting out of the car is "on duty"
         Parking  lot defenses based on Hager  are getting weaker every day, when the Commission concludes a claimant on property is now "on duty" to invoke benefits.  Wilson v Buchanan County, 2011 MO WCLR Lexis 206, affirmed 2012 Mo App. Lexis 1428 (Nov. 13, 2012) That even means jurors, too.  

6.  Video is not a statement , but turn it over anyway.
         A claimant can now obtain video through a subpoena, even though the same video was excluded as a statement to be produced under statutory reform.  State ex rel Feltz v Bob Sight Ford Inc, 341 S.W.3d 863 (Mo. App. WD 2011).  Employees up to no good can work on their excuses a lot sooner.

7.  Penalties now include bills.
        Parties behaving badly can be subject to penalty based on the cost of bills since bills are compensation. Hornbeck v Spectra Painting, 2011 MO App. 1145 affirmed 370 S.W.3d 624 (Mo. 2012)
8.  Notice after diagnosis  (more or less)
         Claimant may not have duty to notify an employer until her own expert tells her the condition is work-related, even if she told her doctor she "did a lot of typing" and underwent EMG studies months earlier. The ghost of Allcorn continues to haunt.  Beckton v AT&T, DOLIR 6-9-11.

9.  Green card defense.
        Immigration status doesn't stand in the way of collecting comp benefits.  Vega-Rivera v Hyatt, 2011 Mo. WCLR Lexis 149.   Illegality to work is an affirmative defense which is wavied if not pled timely. See Wolfe, The Illegal Immigrant as P.I. Plaintiff: Determining Lost Wages, 2012 IL BAR Journal 312 et seq.  (June 2012)

10.  Personal Comfort Doctrine.
       The Supreme Court is to take on whether falling out of shoes while making coffee at work is enough for benefits in Johme v St. John's Mercy HealthCare, 2011 Mo.App. Lexis 1412; superseded 366 S.W.3d  504 (Mo 2012)  and perhaps resolve whether Pile  defines the  standard anymore how to assess equal exposure.

Monday, November 21, 2011

287.190 permanent partial disability

Commission questions whether psychologist's opinion is a physician opinion to support denial of disability

Claimant failed to prove she sustained new permanent disability after having a gun put to the back of her head due to weaknesses in the opinion of her expert in a recent commission decision which  affirms a denial of benefits.  Fagins v DolgenCorp., 2014 Mo WCLR Lexis 77 (June 13, 2014).

The Commission disregards the opinions of the employer's expert psychologist Kennan, the only expert to actually perform any standardized testing, because the expert is a psychologist and not a physician.  Section 287.190.6 provides "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty."  The commission construes this provision to impose not only a burden for an employee to use a physician to prove a case but an equal burden on the employer to offer a physician's opinion to disprove the case.  "We have doubts as to whether testimony from a psychologist [Kennan] is sufficient to demonstrate and certify the absence of permanent disability" based on the requirement of  287.190.6(2) that proof of disability shall be demonstrated by a physician."  

Commission requires permanent condition but not a PPD rating

The Commission awarded partial benefits of 18 weeks against the Fund, reversing a denial by the ALJ that claimant failed to show evidence of a permanent disability because his expert did not provide a disability rating on the primary injury.  Marcainte v Charles Jarrell Contracting Co., 2015 MO WCLR Lexis 28.

Section 287.190.6(2) provides: 

"Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. "

The Commission found "it is not necessary that physicians certify permanent disability in mathematical terms" and that a worker may establish disability with or without a rating provided there is other evidence to show the nature and extent of permanent symptoms, restrictions and/or limitations."

The case involves a career sheet metal worker who had pursued a 4th comp claim involving a back injury.  He  had a history of multiple back injuries, back surgeries, and prior settlement which totaled 60% disability.  Claimant in 2009 bent over and felt a pain in his back and underwent several more back surgeries including fusion, drainage for an abscess, and revision for a failed fusion.  He returned to work for two years but testified to unresolved symptoms in his back and leg, a neurogenic bladder, and more reliance on narcotics. 

The claimant alleged he was now totally disabled when the employer laid him off work two years after his injury  he was unable to find alternate employment with his permanent restrictions.     Claimant obtained a vocational and forensic opinion that he was unemployable due to a combination of the primary injury and pre-existing. The Fund  provided no expert opinion at all and attempted to assert that claimant 'was working' without restrictions and relied upon the absence of a rating as its defense.  The employer settled the case for 35% after claimant had undergone three surgical procedures and claimant at 58 had been laid off and  claimed he couldn't work anymore. 

The ALJ denied SIF benefits because claimant did not offer a medical opinion stating the percentage or amount of disability that resulted from the last injury alone.  The ALJ found there was no case law that allowed an ALJ to determine disability absent a medical opinion.  The ALJ found claimant produced evidence that he did sustain a serious injury that his complaints were credible.   The Commission  concludes since the statute does not mandate a rating that a rating is not required under strict construction.    The Commission found a synergistic effect of 10% and makes findings that claimant now has new left leg symptoms and new surgery at different levels compared to the prior cases.  Claimant had returned for nearly 2 years without evidence of significant accommodation.

The case in many respects is a textbook PTD case involving multiple spinal surgeries at several levels which allowed the worker to return to work with continued symptoms and limitations.  The Commission found this created SIF liability based on the potential to combine despite claimant's assertion that he was working.   The Commission ultimately  found the claimant had received more in settlements than his actual disability: he had only 30% prior disability (with 60% in settlements) and 15% new disability (less than 1/2 the 35% settlement from the employer before the hearing).

The Commission's finding of legislative intent  does not address what appears to be a conflict caused by 287.210 which defines a medical report to require a rating and that a medical report without a rating is incomplete by definition and objectionable.   It is unclear the legislature would  intend the parties not to produce ratings when 287.210 requires parties to produce ratings from treating doctors.

What this case means is that workers in some cases may submit a case without the expense of a rating, provided the worker establishes the other criteria of 287.020.  This reduces the cost to the worker  and makes a case ready for hearing quicker.  This should be a warning to employers there is no safe harbor until the claimant secures a rating to prosecute a case.   

There may be a lot to be said to abolish ratings in Missouri because of their limited efficacy when there is no statutory standard for uniform methodology or adoption of any generally-accepted rules, such as AMA.  In that respect, the decision still leaves a lot of discretion in the Commission to consider ratings they may ultimately disregard or tell parties simply not to bother. 

ALJ  Carlisle
Atty:  Lenz
Experts:  Musich, England   
Treaters:  Mirkin, Rutz

Commission highlights "objective" MRI findings
The Commission modified a PTD award based on intractable back pain and vocational testimony that claimant could not work due to fatigue and need to rest.  The Commission noted an initial normal MRI study, medical records inconsistent with claimant's  symptoms, and claimant's capacity to return to some employment.  Johnson v Assoc. Electric Cooperative, 2012 Mo WCLR Lexis 27 (2-24-12)
ALJ  Fischer
Experts:  Volarich, England, Carr

Commission disregards FCE based on subjective pain complaints
Statutory reform in Missouri requires that objective findings trump conflicting subjective findings.  When an FCE concludes claimant can work but claimant state he can't, does the FCE "objective" findings control?

In the case of Reichardt v Industrial Sheet Metal Erectors, DOLIR 11-10-11, 2011 MOWCLR 226, the 60 year old claimant appealed an award of permanent total disability benefits against the second injury fund and asserted he was unemployable because he spends 2-3 hours each day in a recliner to control his pain in part due to pre-existing conditions including prior surgeries to his neck and back.  An FCE and other doctors concluded he was employable.  Claimant's work-related injury installing a roof and subsequent back surgery resulted in some permanent restrictions resulting in permanent partial disability.  The ALJ concluded claimant was employable, and the 287.190.6(2) required the objective findings regarding work restrictions to control over restrictions from claimant's expert  based on symptoms that claimant must  lie down regularly due to narcotic use and chronic pain. 

The Commission disagreed.   The Commission concluded the FCE is not an objective medical finding "as to pain" and there is no objective medical findings as to the "severity of pain."   The Commission found no conflict on the evaluation of pain  and concluded claimant was unemployable based on pain complaints, modifying the award against the SIF from permanent partial to permanent total. The Commission further rejected the reliance of the SIF's expert that a prior neck and back surgery were not disabling because claimant did not identify any prior accommodation. 

The case imposes a new rule of construction which essentially nullifies  287.190.6(2).   The case creates far broader discretion to consider subjective complaints of a claimant regarding his capacity to work to award benefits when claimant has medical  restrictions which by themselves do not prevent employment in the open labor market.   It is not clear whether the SIF presented any evidence how the functional capacity exam might limit job activities because of pain.   The suggestion that the Fund (or the employer) must utilize  some test other than an FCE to negate such testimony about pain leaves little realistic prospect that objective findings have any greater evidentiary weight. 
ALJ  Kohner
Atty:  Christiansen
Experts:  Lalk, Lichtenfeld, Weimholt, Gonzalez
Treaters:  Kennedy, Graham

Thursday, November 17, 2011

Jurisdisdiction cases

No MO jurisdiction with no MO employment contract
The Commission denied benefits in Neese v Chrysler, Old Carco, 2014 MO WCLR Lexis 22 (March 11, 2015) involving four claims of occupational disease leading up to end of employment in 2005 and her neck surgery in 2007, affirming a denial.   The Commission found that claimant failed to prove a compensable injury under 287.110 and did not show an employment contract in Missouri, and her work was not principally localized in Missouri within 13 weeks of the injury or diagnosis.  Claimant had worked in Alabama but had worked in Missouri only about 3 weeks.  The Commission in addition denies benefits based on lack of causation noting the experts relied upon inaccurate histories. "Both doctors rendered purely conclusory opinions in their reports, and failed to persuasively explain any causative interaction between employee's job duties in Missouri and the purported occupational disease."

ALJ  Denigan
Experts:  Dr. Poetz, Dr. Berkin, Dr. Cantrell

No Mo jurisdiction for KS accident (287.110)
Claimant failed to carry his burden of MO jurisdiction and the commission was free to disbelieve claims of a Missouri contract of employment by purchasing equipment in MO  for a KS job.  Although claimant assets the evidence was uncontested the ALJ found it to be cursory, vague and disjointed.  The Commission could adopt the ALJ opinion with or without correct and did not have to produce its own award.   Lopez v Martinez, 2014 Mo App. Lexis 633 (June 3, 2014).
ALJ  Stokes, Lindsay

No amended award after appeal
The Commission affirmed an award of total disability benefits against the Fund, but noted an error to issue an amended award after the appeal was filed.  George v Ajax, 2013 Mo WCLR Lexis 195 (Oct. 2, 2013); 2014 MO WCLR Lexis 70 (May 15, 2014)(benefits cease upon death or remarriage).
ALJ Denigan

Commission has jurisdiction to modify temporary award to final award
In Johnson v Land Air Express Inc., 391 S.W.3d 31  (Mo Ct. App 2012) the claimant obtained a temporary award to provide treatment for his back and the Commission modified the award to a final award and found claimant failed to prove prevailing factor.  The parties did not dispute there was substantial evidence to support the finding. Claimant had a long history of prior back problems before he states he reinjured his back moving a pallet.  Claimant asserted the Commission lacked jurisdiction in this case to modify the award when liability of medical bills remained an outstanding issue. The court found the Commission had jurisdiction without a subsequent hearing to modify a temporary award to a permanent award.  The employer's payment of bills pursuant to the award did not make the treatment "authorized" to preclude an appeal.   The court acknowledged  the decision placed claimant in a "difficult" position that he might be liable for treatment ordered by the original award.  Claimant failed to establish in a companion case that the condition arose from an occupational disease and did not appeal that case.
Atty:  Yarwood, Slattery, Seliga

Court of appeals lacks jurisdiction to consider temporary award.

In White v Anderssen Mobile X-ray Service, 389 S.W.3d 222 (Mo. App 2012) the court of appeals concluded it lacked jurisdiction to consider the appeal.  The employer disputed an accident en route to work arose out of and in the course of employment but stipulated in oral argument that claimant was on duty.  Claimant asserted she started work after making a phone call to "check in."

Court of appeals lacks jurisdiction when motion to commute award remains outstanding
A pending motion of commutation in a PTD award left unresolved issues which warranted dismissal of the employer's appeal by the court of appeals.  The claimant's attempt to dismiss the employer's initial appeal due to lack of a bond was properly rejected, when claimant in eight years of litigation  failed to establish on the record that the employer was uninsured to require a bond.  Grauberger v Atlas Van Lines, 2012 Mo. App. Lexis 816 (June 14, 2012), affirmed by Commission, 2012 Mo. WCLR Lexis 141 (July 18, 2012) (attorney withdrew motion to commutate award).
Atty:  Hilliker, Childers

Comp Commission retains primary jurisdiction to determine accidental injury making summary judgment premature
The employer lost its summary judgment in a suit by an employee involving an injury at work based on a plain error review by the court of appeals. The claimant had a pending worker's compensation case which had not resolved whether claimant had an accident that was the prevailing factor in his injury. The court concluded summary judgment would result in manifest injustice to the claimant because it would prematurely end any civil suit on the merits when the defense was based on a question of fact regarding whether there was an accidental injury to be determined by the commission. The case is Cooper v Chrysler Group, 361 S.W.3d 60  (Mo. Ct. App. 2011)
The claimant filed a worker's compensation claim which required proof that the accident was the prevailing factor in his injuries and that any treatment arose from his accident. The dispute involving the 2007 accident arose whether or not a 2008 surgery was work-related. The employer admitted that claimant sustained a workplace accident but disputed that surgery was necessary as a result of the fall. The claimant filed suit and agreed the accident was not the prevailing factor in his injuries. The trail court had affirmed summary judgment in the employer's favor on the ground that plaintiff's exclusive remedy was under worker's compensation law.

The eastern district indicated that the circuit court violated the primary jurisdiction of the Commission to make the decision whether claimant sustained accidental injury. The primary jurisdiction doctrine provides the courts will not decide a controversy within the jurisdiction of an administrative tribunal until after the tribunal has entered its decision. A claimant may file a tort claim while a case remains pending before the commission but the Court abuses its discretion to render summary judgment on the merits.
Judge Crane concludes if the Commission "does not find an accidental injury, plaintiff should then be able to pursue his civil cause of action." Judge Romines in a concurring opinion indicated that legislative reform narrowing the definition of accidental injury inevitably resulted in more civil suits. "Clearly the legislature prefers jury trials."

Cooper on its merits is fundamentally a procedural issue that summary judgment is premature based on the primary jurisdiction doctrine. The case facts, however, contain several warnings for employers. Denying cases in comp may result in a civil tort case. This case goes one step further. The case facts warn employers that even admitting accident and providing benefits comp does not preclude a civil case when a dispute arises regarding medical care.

Plaintiff, in this case, pursues benefits and claims work benefits on the premise that work is the prevailing factor, and then in a civil case denies work in the prevailing factor. This is similar to the pleadings in State v KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 15 (Mo. Ct. App. 2011). In that case claimant lost a summary judgment motion in which claimant denied his work was the prevailing factor in his mesothelioma and the court in a landmark decision concluded post-reform changes abolished exclusive remedy defenses in occupational disease cases. Cooper does not go that far on the merits.  The need for future medical treatment, such as a surgery, is not a determination of prevailing factor in the definition of accidental injury but whether the treatment is reasonably required as defined by 287.140, according to Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 6-14-2011). Tillotson is not mentioned in the opinion.  The Cooper case fundamentally involved a fight over a surgery, and not whether claimant had an accident or needed at least some treatment related to an accident, as he had received physical therapy.

The determination required by the Commission is not as simple as suggested by the Cooper opinion.

Determining what accident injury means not may be more than whether claimant had an injury to his back (this appears undisputed) or that he needed some care (also apparently undisputed) but that claimant's accident caused a surgical condition. The opinion does not indicate if there was conflicting evidence on prevailing factor over fight over the role of pre-existing conditions, other accidents, treatment modalities or whether the issue arose simply over a denial of requested care. The Cooper opinion indicates claimant can simultaneously pursue tort and comp remedies but leaves unanswered the impact of election of remedies when claimant settles a comp case for a back injury but claims in tort he should have received something more. The case leaves the employer in the odd posture of trying to convince the Commission that work is the prevailing factor (which claimant now denies) but maintaining its defenses to dispute the surgery.

Attys: Eric Holland, Maureen McGlynn

No Exclusive Remedy for Occupational Disease Claims
Just when Missouri business was feeling good about things after comp reform, the court of appeals has now announced open season and allows claimants with occupational disease cases to go after their employers in circuit court instead of comp. State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, 353 S.W.3d 13 (Mo. App. 2011)  has profound implications for anyone running a business in Missouri.

Claimant's mesothelioma was diagnosed more than 2 decades after his employment ended. He states his exposure occurred while working but he denies his work was the prevailing factor. Claimant proceeded in tort on negligence and premises theories that his employer breached its care not to expose claimant to asbestos. The employer filed for summary judgment, and lost, on its argument that the exclusive remedy existed under worker's compensation.

What did the phrase "accidental injury" mean in 287.120.2 which provides comp as the exclusive remedy. The court found since claimant did not have an "accident" he could proceed in tort because exclusive remedy only applied to accidents. The employer conceded claimant did not have an "accident," as defined by the statute. The court of appeals affirmed the denial of summary judgment. The majority claims 2005 reform changed everything: it rejects a broader definition of accident in Staples v A.P. Green Fire Brick Co., 307 S.W.2d 45 (Mo. banc 1957) which incorporated occupational disease in the definition of accident for more than half a century.

Two dissents indicate the majority allows the claimant to elect his forum whether he wants to be in front of the Division or a jury to decide compensability. The dissenters find no legislative intent to remove occupational disease from the Act, or to decouple the Act's coverage from the Act's exclusivity.  Claimant worked for the employer for 34 years. He had originally named 15 other defendants in his asbestos-exposure claim, and settled or dismissed everyone else except the employer.

Jurisdiction to approve structured settlements
In 2004 the Commission awarded death benefits to a surviving wife and three children after a claimant died from asbestos.  Seven years later the parties  agreed to a settlement to pay a lump sum and future periodic payments.  The Commission refused to approve the agreement claiming it lacked "jurisdiction."  The employer appealed. 

The court of appeals in Roth v J.J. Brouk and Co., 356 S.W.3d 786 (Mo. App. 2011) concluded that  the Commission had "authority" to approve the settlement by 287.390 which requires agency approval of any type of settlements.  The Commission cannot avoid its duty to approve or disprove any settlement.    The court notes that both the Commission and the state regulations conflate jurisdiction and authority, which are two separate and distinct inquiries.  The case was remanded for the Commission to determine if the settlement comports with the statutory requirements, such as being in accordance with the rights of the parties.

Claimant sustained injuries when he slipped on a ladder fixing a pump to repair a hydraulic leak. He recovered benefits in comp and obtained judgment in a subsequent tort suit. The southern district reversed the judgment, noting claimant was a "classic" statutory employee and his activities did not fall within the "improvements" exception under 287.040 to avoid comp as an exclusive remedy. Sell v Carlisle Power Transmission, 298 S.W.3d 541  (Mo. Ct. App.  2009) distinguishes when an improvement is not an improvement, finding that claimant's routine duties to maintain the defendant's plant was more "maintenance" than "improvements", which related more to capital and construction that improved value or income.

Election of remedies did not bar civil suit after settling with one party
Lonnie Lewis was a passenger when he was riding in a tractor trailer that overturned and killed him in 2004. Lewis operated the truck for Freeman, an uninsured employer, who had a contract with DOT Transportation. The Lewises' dependents received an award in 2010 for worker's compensation benefits against DOT Transportation as a statutory employer. The circuit court granted summary judgment in a wrongful death claim and found the dependents had made an election of remedies by collecting worker's compensation benefits under 287.280. The court of appeals found no election of remedies against Freeman, as claimant recovered comp benefits only against DOT, and allowed the wrongful action to proceed against the uninsured employer because they were two separate employers. DOT could subrogate against any civil recovery against the employer to avoid an "evil" double recovery. Lewis v Gilmore, Freeman,  2011 Mo App. Lexis 489 superseded  2012 Mo. LEXIS 109.

In Thomas v Treasurer of the State of Mo, 326 S.W.3d 876 (Mo. Ct. App. 2010) the Court of Appeals found that the Commission erred that it lacked jurisdiction to consider an appeal filed within 20 days after an amended award, when the Commission found 287.610.1 barred the administrative law judge to issue the amended award to correct a judicial error in the computation of permanent partial disability. The Commission distinguished between judicial errors and clerical errors as the basis of its decision and found the administrative law judge had authority only to correct clerical errors. The court construed 287.610.1 to grant unfettered power to the administrative law judge to make substantial changes to an award to amend, modify, reinstate or dismiss the award within 20 days or until an appeal is filed with the Commission. The court finds the “plain reading” of the amendment referring to correcting “clerical errors” does not limit an ALJ’s authority correct such errors, but allows correction of such errors any time with the 20 days even after an application for review.

"None shall pass," warned an earnest knight from an old Monty Python skit that knew it was beat but kept swinging and made things only worse for himself as he lost more and more limbs. The same message was told to an employer who lost a dubious defense at the commission, and has been told by the Court of Appeals that its appeal of a temporary award isn't going to pass, either.

Bolen v Orchard Farm R-V School District, 291 S.W3d 747  (Mo. Ct. App. 2009) involved a claimant who alleged in 2006 she twisted her right knee, almost fell, and was told she might require surgery. The employee took the case to a temporary award in 2008 and the court ordered the employer to tender care. The employer asserted it owed nothing, as claimant provided notice on the 36th day, 6 days after the 30 day statutory deadline. In such cases, the employee must show lack of prejudice, a burden the claimant easily carried when the employer's own witness conceded no prejudice existed but that some prejudice could have theoretically occurred. The employer's own expert, Dr. Milne, concluded claimant needed treatment because of the accident.

The court of appeals quickly dismissed the appeal due to lack of jurisdiction, a point that has been well-established since the 2008 court of appeals decision in Norman v Phelps County Regional Medical Center, 256 S.W.3d 202 (Mo. App. SD 2008). The employer, represented by Evans & Dixon, argued that provisions in the code of state regulations allowed appeals, a point quickly dismissed that the state regulations cannot confer jurisdiction when it is not expressly granted by statute.

In Smalley v Landmark Erectors, ED 91861 (Mo. App. 4-28-2009)  the Eastern District barred an employer from appealing a temporary award in a 2006 carpal tunnel case in which the employer denied all liability and claimed a previous employer was liable. The court discussed a judicially-created exception prior to the 2005 amendments that allowed an appeal of a temporary award for treatment where the employer claimed it was not liable or paying any compensation. Although the 2005 amendments did not specifically change 287.510, the section governing temporary awards, or 287.495, the section allowing appellate jurisdiction, the Eastern District found that allowing an appeal of a temporary award violates legislative intent to limit appellate review since the legislature requires strict construction under 287.800 and no statutory provision mandates the previous judicial exception.

State of hire determines jurisdiction

In Shupe v John Pizzo, 2013 Mo WCLR Lexis 196 (Oct. 2, 2013), claimant did not live in Missouri, his employer was not principally localized in Missouri and his injury occurred in South Dakota.  The employer settled the Missouri claim and claimant asserted in a claim against the second injury fund she was totally disabled since 2001 after being thrown around in the back of cab and being out of work for 2 years.  "Claimant claims Missouri  jurisdiction because her employer and United Van Lines entered into an agreement that was finalized in Missouri. Although the final steps of an agreement between United Van Lines and John Pizzo Trucking occurred in Fenton, Missouri, there is no basis to find that relationship was a "contract of employment."
ALJ: Boresi
Atty:  Morgan, Barnard

In Riley v Don Julian Bros., 2013 MO WCLR Lexis 169 (August 30, 2013), the Commission found Missouri was the state of hire when claimant accepted an offer over  the telephone.  The employer's own personnel records were consistent with the alleged hire date, although the employer asserted claimant required additional steps.  A dissent argued that jurisdiction was proper in Kansas when claimant participated in a second interview.   The case involved a catastrophic spinal cord injury in 2002 in which medical bills were more than 3 million dollars. 
ALJ  Fowler
Atty Thomas, Henoch

In Mayse v Jeff Honor Roofing, DOLIR 1-28-11, the Commission affirmed a decision that Missouri had jurisdiction to allow claimant to pursue SIF benefits based on the state of hire, when claimant reports he accepted a job offer from a Kansas company for work to be performed in Kansas after he returned from a Kansas office to drop off an application. Claimant settled for $60,000 in Kansas, and obtained an award of permanent total against the second injury fund. Claimant's prior chronic back pain combined with a new back injury (unoperated), causing a change to a more sedentary life style and need to lie down with some depressive symptoms. The ALJ found that claimant's previous learning disability with illiteracy also combined to impair claimant's coping skills and prevented him from learning new vocational skills. The decision has a detailed discussion regarding prior learning disability cases.

ALJ Magruder
Atty: Eppright, Fournier
Treaters: Dickey, Jones, Hendel
Experts: Koprivica

Claimant cannot recover benefits under Missouri compensation law in a hardship setting flowing from a March 2009 accident when he worked as a over the road truck driver and fell from a truck in Dallas, Texas, because the claimant was hired in Kansas, not Missouri. The case is Auxier v HP Distribution LLP, DOLIR 9-3-10. Claimant worked as a driver for a previous company which went into involuntary bankruptcy about 9 months before the accident and transitioned with some other employees to work for the defendant. The issue in the case was if claimant had, in fact, been "hired" or "merged" with the defendant and where any last act for hiring occurred. The administrative law judge found claimant had been hired and was not "merged", and resolved conflicting testimony that claimant had been hired in Kansas, and not Missouri, finding claimant was not credible in his claim that he required a drug test in Missouri as a condition of employment. The employer had stipulated claimant's accident arose out of and in the course of his employment, and had paid about $54,000 in benefits leading up to the hardship for additional care.

The Commission last year denied benefits based on lack of jurisdiction, and because a required drug test occurred outside the state of Missouri . Roberts v Leggett &Platt, DOLIR 3-25-09.

ALJ Miner
Atty: Creedy, Abbott

Exclusive remedy defense can be waived

A Missouri employer's failure to assert worker's comp in its answer to a tort suit in the future waives the defense of comp as an exclusive remedy, according to the Supreme Court's reject decision McCracken v Wal-mart Stores East, 198 S.W.3d 479 (Mo. 2009).

The Missouri Supreme Court concludes strict construction no longer mandates a liberal reading to prove comp coverage in close cases, and allowed a claimant to proceed in a negligence claim against Wal-mart which asserted a last minute statutory employment defense that claimant's only remedy was in comp when a Wal-mart employee pushed a bread rack into his shoulder. Claimant worked for IBC, a vendor that emptied bread racks from IBC's truck to a loading area before product was stocked in the Wal-mart display racks. Claimant had settled his comp claim against IBC.

The Supreme Court concluded the circuit court erred in dismissing the case due to lack of subject matter jurisdiction, noting that the circuit courts have jurisdiction over all cases and matters according to the state constitution. The Comp Act cannot overrule the provisions of article V, section 14 giving circuit courts jurisdiction over personal injury claims.

Claimant does not have an unequivocal right to proceed in circuit court, but the circuit court retains jurisdiction to address an exception to tort liability created by the Act as an affirmative defense under Rule 55.08 or 55.27(a). Alternatively a claimant may file in worker's comp, and the Commission may make a determination whether or not claimant is a statutory employee to allow a claimant to proceed in tort.

The court addressed the merits because of historical confusion and "sloppiness" concerning the defense. Walmart failed to assert the defense in the timely basis in its answer and waited until the day of the trial erroneously to assert the defense as a motion to dismiss but the rule was applied prospectively only.

The Western District in Fortenberry v Buck D.O., 307 S.W.3d  676  (Mo. Ct. App.2010), found the court erroneously failed to use a stricter summary judgment standard before dismissing a malpractice claim for lack of subject matter jurisdiction. Claimant treated at an on site medical clinic and received an award of permanent total benefits for ulnar injuries which he claims flowed from receiving an injection. He claimed the physician did "something more" to support the second action. The court noted the record was not fully developed whether or not there was a genuine dispute of facts or if the duties to provide medical care were non-delegable.

In Heirien v Flowers, 343 S.W.3d 699  (Mo. Ct. App. 6-27-11) the court noted the defendant preserved its argument of exclusive remedy by filing a motion to dismiss for lack of subject matter jurisdiction. The case was remanded because the judge found it lacked subject matter jurisdiction contrary to McCracken, which interpreted exclusive remedy as an affirmative defense. The parties, unlike McCracken, disputed facts and the case could not be resolved on its merits as a motion for summary judgment. The plaintiffs alleged that the defendant did "something more" by directing claimant to handle heavy kiln doors with a propensity to tip over before one fatally crushed him.

Issues in dispute precluded summary judgment for work-related assault

Dollar General obtained a summary judgment to stop a wrongful death claim when the claimant's boyfriend came to the store and killed her.

The Court of appeals reversed a summary judgment on behalf of the employer and indicated issues of genuine fact remained in dispute. Flowers v City of Campbell and Dollar General, 384 S.W.3d 305 (Mo. Ct. App. 2012)

A summary judgment is a "drastic" remedy. The employer argued that an assault arising out of and in the course of employment was subject to the exclusive jurisdiction of the worker's compensation act and that claimant's parents could not proceed with their wrongful death claim. The court noted that not every assault at work was subject to the Act and if the non-moving party could establish an exception that summary judgment was improper. A purely personal assault is not compensable under the Act. The court then made its own de novo finding that claimant's assault was an exception because it was directed by purely personal reasons.

In the case an 18 -year cashier in Campbell, Mo arrived at work with a black eye and stated her boyfriend had assaulted her. He then showed up at work and tried to kick down an office door and was persuaded to leave. He arrived a few hours later and shot her and then killed himself. The court indicated that statutory reform had not changed the law regarding assaults, and described numerous prior cases in which employees imported their private life to work. The decision does not explain why the boyfriend had been released from police custody.

The employer had filed a form 1 report of injury. The court further noted that the summary judgment motion had a procedural defect which did not contain a list of "uncontroverted facts" which could have supported a denial by itself. The employer's motion contained a list of "facts" including the legal conclusion that the accident arose out of and in the course of employment.

The court sustained a motion for summary judgment filed against claimant's supervisor, who asserted he had no legal duty to the claimant. The court rejected plaintiff's motion to file a late response to the supervisor's motion for summary judgment and concluded the excuse that his temporary secretary made a docketing mistake was not "excusable neglect" to support a motion filed out of time.

The decision does not indicate if any benefits had been paid under the Worker's Compensation Act for the 2006 accident.

Piercing the corporate veil
Claimant was hired in 2005 to perform heating, air and electrical work on new construction for a building and fractured his left elbow when he fell from a ladder while installing duct work.  The uninsured company, an LLC, argued claimant was an independent contractor.  The Commission found claimant was an employee, and pierced the corporate veil to impose personal liability on the owners (Mr. and Mrs. Lile) resulting in an award of over $72,000 with open medical.  Guinnip v Bannister Electric, 2012 Mo WCLR Lexis 149 (July 27, 2012). The Second Injury Fund was ordered to pay the medical bills

The ALJ found the employer was less credible because of "inconsistent, vague and evasive" testimony and found liability conflicting evidence whether on not Mrs. Lile was a co-owner.  Mrs. Lile did not file an appeal on the award and the appeal on her behalf filed by her husband was dismissed as unauthorized practice of law.  The employer operated its business out of a personal residence under several fictitious entities.

The statute required claimant to have only 1 employee to be subject to the Act because it was performing construction work.

"Missouri Courts have also recognized that the corporate veil could be pierced in a workers' compensation case where in essence the corporation was not a separate legal entity from its owners." In order to "pierce the corporate veil", the employee had to show 1) control, and not merely majority or complete stock control, but complete domination, not only of finances, but of policy and business practices in respect to the transaction attacked so that the nominal company had at the time of the injury no separate mind, will or existence of its own; 2) such control must have been used to commit fraud or wrong, to perpetuate the violation of a statutory duty, or constitute a dishonest and unjust act in contravention of the employee's legal rights; and 3) the aforesaid control and breach of duty must have proximately caused the injury or unjust loss complained of."

"In Claimant's case, there was a complete domination of the LLC by Steve and Melissa Liles, as the owners of the LLC.  The Liles' exercised complete domination of the finances, policies and business practices of the LLC. They used the LLC's income for their own personal use. Out of the LLC's income, the Liles' paid their home mortgage payments, paid their home's utility bills, paid their personal vehicle loans, paid a Direct TV television bill, bought clothing for the family, paid a dental bill for Mr. Liles, paid their personal credit card bills, paid their personal health insurance premiums and paid other personal bills. That was clearly indicative of a complete domination of the finances of the LLC by the Liles'.

The Liles' also dominated the business policies and practices of the LLC. The LLC clearly had no separate mind, will or existence of its own. The Liles' chose not to purchase workers' compensation insurance for the LLC on the alleged basis that Clamant and the other workers were subcontractors when the evidence clearly showed that Claimant was an employee and not a subcontractor. The Liles' chose not to  allow the LLC to pay its debt to Claimant and instead chose to allow the LLC to pay for their own personal living expenses such as their mortgage payments, house payments, credit card payments and other expenses."

Settlement did not preclude wrongful death suit
An uninsured employer could be sued for wrongful death because claimant's worker's compensation settlement was not an election of remedies, according to the Missouri Supreme Court in Lewis, etal, v.  Gilmore, etal, 366 S.W.3d 522  (Mo. 2012)  

A claimant may elect to sue his employer in circuit court if the employer fails to carry worker's compensation insurance.  Claimant worked for an uninsured trucking company, Freeman, which operated under a contract with DOT when his truck over turned resulting in his death.  Claimant's survivors  filed worker's compensation and wrongful death suits against both claimant's employer and the statutory employer, DOT. The circuit court stayed the wrongful death suit until the Commission ordered DOT to provide compensation  benefits, and then granted summary judgment in favor of Freeman.    The Supreme Court now reverses the summary judgment. 

The election of remedies doctrine prevents further recovery once a party prosecutes a case to a final judgment to prevent double recovery from a single injury.  The majority concluded that the election of remedies doctrine did not apply in this case with multiple defendants because claimant did not obtain a final judgment against the uninsured employer and "to not allow a civil action takes away one of the options the General Assembly gave an employee to seek redress against an employer who has done nothing to secure workers' compensation insurance for his employees."  A dissent argued claimant elected his remedy because he already received a recovery from a single injury through worker's compensation  and to allow further recoveries let claimant have his cake and eat it too. 

Hon.  Tietelman

Friday, August 12, 2011

Safety penalty cases

No scaffolding violation
The Commission reversed a penalty for an alleged employer safety violation.  ALJ House noted "As is apparent from the testimony of both claimant and claimant's employer, claimant was working on scaffolding which broke when his employer attempted to walk on the same board occupied by claimant."  the Commission noted the employee set up the boards which were 4 feet off the ground, he was aware of the defect, and the employer had no reason to know of any safety defect.  The Commission awarded PTD against the Fund in the case.  Moseley v Elite Stucco, 2014 Mo WCLR Lexis 48 (April 10, 2014).  The Commission noted the absence of medical history did not preclude a finding of causation. 
ALJ  House
Atty: Pitts, Musick

No safety penalty for woman too big for her seat. 
A 50-year old health care provider was awarded permanent and total disability benefits when she was driving a patient in West Plains, MO in 2009 to buy a soda, she became distracted by the patient, and struck a car resulting in leg injuries which placed her permanently in a wheelchair.  Barton v Green Acres Home of West Plains and Newton Group Home, 2014 Mo WCLR Lexis 31 (March 7, 2014). 

The Commission rejected the employer's arguments that claimant violated a safety policy by not wearing a seat belt and that her benefits should be reduced up to 50%.  The Commission affirmed a finding by the ALJ that the employer failed in this affirmative defense by not showing that the lack of a seat belt caused the injuries in question.   The ALJ alternately found that the employer did not "adopt" a policy to require its workers to wear seat belts and that a policy for employees to "obey the laws" was insufficient to invoke the penalty.  Claimant asserts because she was 400 pounds that she was unable to use a standard seat belt and there was no attempt by the employer to provide her a larger one.  She asserts that her chronic obesity of 400-450 pounds was never an obstacle or hindrance to her employment. 

"The courts have recognized that there must be a causal connection between the violation of the employer's safety rule and the employee's injury. Davis v. Roadway Express, Inc., 764 S.W.2d 145 (Mo. App. S.D. 1989); and Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921 (Mo. App. S.D. 1985). The failure of an employee to obey a safety rule does not authorize the imposition of the penalty statute unless the injury is caused by the Employee's failure. Swillum v. Empire Gas Transport, Inc., supra. The statute itself dictates that the penalty shall apply only when the injury is caused by the employee's failure to obey the safety rule."

The ALJ further rejected the argument that claimant's accident did not arise from her employment and noted a heightened occupational risk because she drove more on the job and had a passenger at the time of the accident who required more attention. 

The employer did not contest the finding of PTD on appeal and limited its alleged error to the safety penalty issue.  Claimant was rendered temporarily disabled for 93 weeks and spent nearly a year in a nursing home after her accident because she was unable to take care of herself.  The ALJ did not award Medicaid write-offs  when there was no evidence that claimant remained personally liable on the balance.   

ALJ  Wilson
Atty:  Alberhasky, Moberg
Experts:  Koprivica, Swearingin

No safety penalty for sticking hand in machine
Claimant established that he was permanently and totally disabled when his dominant right hand became stuck in a gizzard machine resulting in degloving injuries, but the Commission affirmed a 25% reduction of benefits.  Gonzales v Butterball, 2014 Mo WCLR Lexis 29 (3-5-2014)

"There is evidence that the claimant attended safety training for this machine and should have been aware of employer's safety policy to call a supervisor if the gizzards were stuck rather than trying to correct   it on his own. There was also testimony by a coworker that most employees followed this protocol."

Claimant was a 66 year old immigrant who spoke limited English and had worked for the employer for several years included taking the guts, eggs, and hearts out of turkeys. Claimant also cut out the gizzard and other parts of the turkey.  His job was hand intensive and after the accident he had hypersensitivity and reduced dexterity which delegated the injured hand to a 'helper' hand.  The opinion provides extensive detail of the effort of more than an hour to extricate claimant's trapped hand in the evisceration department. 

Commission strikes safety penalty on narrow reading of safety manual
Claimant hurt his foot by having it sticking out of a forklift.  The safety manual required employees to keep their feet inside the forklift when traveling, but the employer failed to establish claimant was aware of a safety rule requiring him to keep arms hands and legs inside the forklift when it was not "traveling" in Greer v Sysco Food Service, 2014 Mo WCLR Lexis 41 (3-28-2014) and reversed a penalty by the administrative law judge.  The commission affirmed a finding that claimant was partially disabled, rejecting vocational opinion based on self-reported limitations of a need to lie down.  Affirmed  ED 101389 (Mo App. 2014)(Nov. 18, 2014).
ALJ  Kohner
Atty Margolis

Supreme Court leaves issue unresolved of what is "compensation" for penalty provision 
   When an employer was liable for a 15% safety penalty the penalty did not apply to additional compensation from the Second Injury Fund, according to the Missouri Supreme Court in Hornbeck v Spectra Painting Inc. No SC 92116 (Mo. July 31, 2012), affirming a decision from the court of appeals. Payment of such a penalty was inapplicable because it would penalize the employer for conditions it had no control and may deter employers from hiring workers with pre-existing disabilities.

         The court of appeals awarded $11,578.94 in penalties by enhancing the award based on compensation paid in the form of medical and indemnity benefits. The Supreme Court indicated there was "no reason for this court to explore" what was meant by "compensation" because the issue was not a matter in controversy. "Spectra’s counsel conceded at oral arguments that, if the penalty is owed, it should apply to the compensation monies that Spectra voluntarily paid to Hornbeck before the Commission’s decision." The employer initially disputed whether any penalty applied but abandoned this issue. Claimant had recovered in addition to benefits against the employer an award of 42.4 weeks of compensation from the second injury fund.
      In Hornbeck v Spectra Painting, ED 95680 (Mo. App 9-6-11) the court rejected the employer's argument that "compensation" subject to penalty did not include $32,801.15 in medical benefits already paid, $16,754.88 in TTD benefits paid, or a credit of $7000 against PPD in previously overpaid benefits. The court affirmed a Commission award of penalties under the Scaffolding Act relying upon 1919 precedent showing a fall is prima facie evidence of negligence in the absence of exculpatory showing on the part of the employer. The employer presented no such evidence. Claimant failed to persuade the Commission that he was permanently and totally disabled, that his subsequent biceps repair and back fusion flowed from the accident, or that the penalty should extend to SIF benefits without producing an incongruous result of punishing employers for pre-existing injuries. The decision puts to rest the argument whether medical benefits are compensation under the statute based on some equivocal statements in Thompson v ICI American Holding, WD 72374 (8-9-2011).

Strict findings required to invoke affirmative defense of safety penalty

The Commission on its third opinion on this case reversed its original imposition of a penalty against the employee and concluded that the employer failed to prove an affirmative defense that claimant violated a safety rule to support a 50% penalty.  The employer offered testimony that there was no doubt that carrying a 100 pound bag up a 40 foot ladder was the prevailing cause of the injury.  Claimant sustained a back injury, required surgery, developed CRPS, and was unable to return to his career as a roofer due to intractable pain.   The commission concluded that the employer failed because it did not show that violation of a three point contact rule was the cause of the injury simply by showing the injury occurred during the violation of the rule.     Carver v Delta Innovative, 2-14-13; 379 S.W.3d 869; 2013 Mo App. Lexis 129 (January 29, 2013) The award had applied the penalty to all "compensation" .  The Commission found it lacked jurisdiction to grant relief of a credit or reimbursement between carriers for benefits voluntarily made under Kansas law. DOLIR 7-22-11.
ALJ McKeon
Atty: Kelly, Russell, Jurcyk, Dickson
Experts: Koprivica, Cordray, Abram
Treater: Kaufman, Drisko

Claimant's right hand was pulled into a pulley, when the claimant tried to work on a broken belt, he did not fully de-energize the equipment and tried to stop a blower with a broom handle instead.  The Commission awarded benefits but allowed a 37 1/2% reduction against all benefits paid, allowing a credit for more than $25,000, about half of which was medical bills. The issue whether medical bills were compensation was not preserved on appeal.  The court of appeals found that claimant's failure to follow lock-out safety rules was an efficient cause of the accident and did not have to be the sole cause.  The court found the employer enforced the rule by training and monitoring employee compliance, and did not have show previous safety violations and consequent discipline.  Claimant had attended annual training for 12 years.  The court found a rational basis in the 2005 amendments to impose different penalties to employers and employees for noncompliance, noting that both parties were not similarly situated.   Thompson v ICI American Holding, WD 72374 (8-9-2011)

The employer disputed if claimant's accident arose out of and in course of employment when she was asked to drive about 45 minutes to help staff another convenience store in Hollister. Claimant lost control of her car resulting in multiple injuries including the need for a ORIF hip. She was temporarily disabled for about 7 months. She reported since the surgery she had severe posture problems that limited her ability to drive, sit in front of a computer but could attend church. A vocational expert felt she could perform some sedentary work such as an illustrator because she previously worked 25 years as a graphic artist. ALJ Mahon concluded it was a close case but found that claimant was unemployable because of her limits with her posture and questionable capacity to maintain the pace of the employment.

The ALJ awarded $45,865.83 in penalties against the employer for unreasonable defense. Harness v Southern Copyroll, 291 S.W.3d 299 (Mo. App. 2009) found travel compensable when work requires travel away from the primary business. The ALJ found the travel between stores was for the sole benefit of the employer, and dismissed the argument the claimant violated company policy not to clock out once she left the store. The employer offered no evidence to contest the duration of TTD or amounts of medical bills. The employer had no basis to deny the 50% hip disability found by its own expert. "It is unconscionable to starve out the Claimant by continuing to deny medical care and temporary total disability once compensability is clear and the injuries are severe. The Commission affirmed an award of $229,373.12, which included the penalties, and awarded future medical including vehicle modification and permanent total benefits for the 49 year old claimant. Robin Johnson v Jared Enterprises, DOLIR 8-10-11.
ALJ: Mahon
Atty: Goodnight, Wesley
Experts: Koprivica, Swearingin, Hendler, Cordray
treaters: Wester

A sleeping b-driver on a truck claims she could never work again after she fell out of her bunk in 2001 when the truck braked suddenly. Although claimant was initially diagnosed with only multiple contusions, she continued to report for years chronic discomfort of her entire body. One physician provided 14 separate diagnosis and another pain management physician placed her fentanyl and methadone for primarily neck, back and shoulder symptoms. At the time of the hearing of the 2001 case, claimant was 60 years old. ALJ Wilson concluded claimant established that she was only permanently partially disabled, that she "overstated" her symptoms and an unrelated depression might impact her symptoms. The experts disputed whether or not fibromyalgia contributed to her symptoms. Claimant had worked only a week. The employer did not prevail on a safety penalty that claimant should have worn a seat belt, because the team driver training claimant apparently told claimant not to wear restraints, contrary to company policy. McPherson v New Prime Inc., DOLIR 3-9-11.

ALJ: Wilson
Atty: Pitts Law Office
Experts: Lennard, Paul

Claimant, a minor, sustained substantial injuries in a car accident while allegedly intoxicated, when he was working out of state and driving to Wal-mart to obtain supplies the next day for his employer. ALJ Mahon denied the employer's defense for drug and safety rule violations, and found that the employer failed to adopt or enforce any drug-free work place policy.
Claimant sustained more than $225,000 in medical bills, resulting in a ruptured spleen, forearm, fracture, and brain injury. The claimant asserts that the employer did not enforce its drug-free work place policy, that claimant's supervisor was drinking, and allowed claimant to drink before driving on his errand. The claimant further asserted that the employer waived any subrogation rights under a 'unclean hands' doctrine.

The Commission affirmed the award, which denied the defense of drug and safety penalties and declined a constitutional challenge on the penalty provisions as moot. The ALJ noted that the employer failed to introduce evidence that claimant's intoxication was illegal in the state where the accident occurred or that claimant accepted a drug-free policy when he was hired as he signed documents in 2005 but did not resign policy documents when he was re-hired in 2006. The case is Merkenson v Tap Enterprises, 4-29-10.

Safety penalty applies to medical bills

Claimant crushed both arms while working under a truck and the Commission affirmed a finding that he violated a safety penalty not to use supports under the truck. Claimant, 58, underwent 7-9 surgeries and restored limited use of his arms and was unable to return to work in his former job as a mechanic, which he had worked for 25 years. Judge Mieners awarded permanent total with disfigurement and did not apply a safety penalty against medical bills. The Commission modified the award and found the 30% penalty applied to all benefits, including medical, which in this case represented over $168,000. Stillwell v Knapheide Truck Equipment Commercial, DOLIR 3-23-10.

Safety penalty against employee for crush injury

Judge Miner applied a 37 1/2% penalty for all benefits including medical, disability and disfigurement when claimant injured his right hand when it was pulled into a machine and had not complied with all safety rules to de-energize and tag the machine.

Claimant retired from the employer after working nearly 40 years following the accident.

Claimant received 55% of right hand. Judge Miner deemed the safety breaches were not "egregious" to assert the maximum 50% penalty, which the employer had initially applied to paid benefits. The case is Thompson v ICI Starch, 3-16-10.

Procedural requirements for drug test
A drug-free work place policy that had zero tolerance and required random drug tests did not thwart benefits of a 23-year old framer who just said no to taking a drug test after a catastrophic injury. The Commission reversed a denial of benefits, noting that the employer failed to comply with a procedural twist how an employer requests a drug test in Roscom v Woodstone Builders, DOLIR 1-12-10.

Hospital nurses informed claimant that the carrier wanted a drug test and advised the claimant that he might want to talk to an attorney about his rights. The administrative law judge denied benefits, noting claimant had refused a drug test at the request of the employer and forfeited his right to benefits under 287.120.6. The commission reversed, noting there was no "request" nor evidence that the request was "of the employer" to invoke forfeiture of benefits under the compensation statute. The Commission further declined to adopt findings by the administrative law judge that the employer had a post-injury drug test policy.

The Commission issued a temporary award that the employer pay ongoing TTD benefits after July 2008, medical treatment including pain management and psychological treatment for claimant’s paraplegia, and deferred an award of past medical bills until the final award. The claimant asserts more than $150,000 in disputed unpaid bills.

Missouri law amended §287.120 in 2005 to increase penalties for drug or alcohol use in conjunction with an accident from 15 to 50% and allowed complete forfeiture when proscribed use is the proximate cause of the injury. Roscom highlights new procedural traps for employers wanting to assert the drug use defense when a post-accident testing is not expressly indicated, a claimant’s consent is sought only after the accident, and the employer never directly requests the test. Missouri reform in 2005 changed the interpretation of the statute from "liberal" to "strict" construction to help Missouri business. This decision is one of many recent cases that has weakened employer’s defenses under the rubric of strict construction.

Friday, August 5, 2011

PTD: Narcotics, secondary effects

Court reduces narcotics
The court of appeals affirmed a decision to reduce a pain management drug cocktail, but the decision came with a twist with a warning about attorney’s fees.

In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of the drugs had anything to do with claimant’s original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in medication and sought attorney’s fees for an unreasonable defense. The Commission concluded that the injured worker failed to show all of the medications were necessary for her work-related injuries and did not reach the issue whether the change in treatment would endanger her life, health or recovery.

Section 287.140.1 provides the employer the right to designate a provider to provide care as reasonably may be required to cure and relieve from the effects of the injury. Section 287.140.2 provides the employer may lose this option if the choice endangers the life, health or recovery of the employee. Section 287.560 provides for costs for an unreasonable defense.

The court of appeals found the Commission erred in part of its finding on the first issue and failed to make a finding on the second issue and remanded to “determine the extent” of the employer’s liability for fees. The court found the Commission considered conflicting evidence and supported the IME opinion that several medications did not flow from the work injury. The Court found that the Commission improperly disallowed two other medications based on insufficient evidence.

The claimant’s expert indicated that using cheaper medications would unequivocally risk claimant’s health. The employer had previously tried to wean claimant from narcotics and was ordered by an administrative law judge to prevent the action. In the original 2007 award a different administrative law judge admonished the employer not to change physicians to try to save money and warned an adverse medical response by the claimant could support an award for costs. Noel v ABB Combustion, 2007 MO WCLR Lexis 14.

Ultimately, the court affirmed a denial of fees.  2013 MO App. Lexis 1187 (Oct. 15, 2013).

This case is important in several regards. The case demonstrates the employer may designate a medical provider in a future medical award. Such decisions, however, are subject to review and potential penalties. Claimant must establish a need for treatment flows from a work injury. The claimant does not have to show the treatment cures or relieves the injury. The employer has the burden why it cut off medications, and the absence of specific evidence on each medication fails in that burden and may result in a claim for an unreasonable defense.

It has been well established that the employer owes for medical expenses when it neglects or refuses to provide care that flows from a work injury.  The decision indicates the employer continues to have an obligation to provide care in the chronic pain patient even though treatment does not, as the statute requires, cure and relieve.  What remains unanswered is whether this intepretation is applies only in the context of the chronic pain patient or more broadly imposes liability for medical costs in all cases even when there is limited or no efficacy to proposed or prior care. 

Court limits scope of future medical for narcotics

Claimant sustained career-ending injuries from an auto accident arising from her duties as a nurse but failed to prove an award for past or future Percocet and Fentanyl from her personal physician when there was evidence for her to taper their use and her expert could not explain why claimant's pain could not be managed with other medications. The employer stipulated to open medical but disputed the use of these medications and the award for permanent total. The administrative law judge found claimant obtaining a master's degree after her accident not an indication of her employability because she completed studies at a slower pace and on-line. Meyer v Pyramid Construction, 2010 Mo WCLR Lexis 98.

ALJ: Tilley
Experts: Koprivica, Dreilin, Conway, Kane-Thale
Treaters: Gailbraith, Concannon, Gainor, Algen, Metzler
Attys: Collins, Huck

Claimant struck his head and states he developed dizzy spells, blurred vision and neck pain. He underwent extensive medical treatment on his own including multiple cervical steroid injections and use of narcotics from Dr. Padda, representing over $60,000 in disputed medical bills. Judge Kohner awarded 15% disability on the basis of grade I concussion and cervical strain, and noted Dr. Peeples' recommendation for only non-narcotic medication more credible due to his expertise. Claimant's expert attributed the need for some medications to his work injury and pre-existing cervical conditions. Claimant's medical history indicated that he reduced his use of cigarettes and alcohol and was 'down to 2 joints' per week. Hempel v Lincoln Couty Electric, 2010 MO WCLR Lexis 18.

The Commission in a 2-1 decision reversed a finding of liability against the second injury fund and found the employer liable for total disability as a result of the effects of medication which made her sleepy.   The Commission finds use of carbamazepine and hydrodone caused memory loss and fatigue which caused her to sleep during the day incompatible with gainful employment.  
Sartin v Manpower, 2015 Mo WCLR Lexis 49 (May 14, 2015) 

The ALJ had found the Fund liable for total disability benefits.  The employer had settled the case for 12 1/2% and would have been found liable for total disability benefits for the 51 year old claimant.

ALJ Fisher
Experts:  Mullins, Eldred

Claimant fell off a ladder and sustained thoracic fractures, among other injuries. Claimant, 43, contends he was unemployable and has not looked for work after his MMI determination in 2004. ALJ Carlisle found claimant's expert, a neurologist, lacked credibility that claimant was unemployable and severely depressed when all of the treating physicians indicated claimant could work. The employer retained a psychiatrist who concluded claimant over-stated or falsely stated some symptoms. ALJ Carlisle discounted claimant's testimony that he needed to lie down most of time, when such limitations were not documented in many of the treating records. ALJ Carlisle summarized video evidence of claimant operating a motorcycle, made inaccurate representations had been made on a job application, and claimant earned income from e-bay.
The employer was ordered to provide pain medication, but made a finding that use of Oxycontin was not reasonable based on Dr. Coyle's testimony that long term use will "ruin" him. The case is Ward v Ameren, 2009 MO WCLR Lexis 119.

Claimant failed to establish he was PTD due to narcotic use despite contentious testimony from a vocational expert on the impact of narcotics on claimant's capacity to compete in the open labor market.   "Claimant testified he was, in fact, on said narcotics. The cross-examination, which was contentious between Mr. Cordray and counsel, boarding on unprofessional in its' vulgarity, wherein Mr. Cordray was asked why he could not come to an opinion on the causal connection on the claimed mechanism of injury and the need for narcotics. Mr. Cordray remained adamant that he noted which narcotics the Claimant had been prescribed and how much he was taking and the effects which were the result of those narcotics, without attributing these to work-related injuries or preexisting or subsequent conditions." O'Connor v Construction Material Trucking, 2012 Mo WCLR Lexis 135 (July 3, 2012).  Additional evidentiary objections were over-ruled that expert testimony was not "signed and read".
ALJ  Siedlik (affirmed 2-0)
Experts:  Stuckmeyer, Cordray

Claimant was PTD with entitlement to open medical after jumping over a 6 inch cone, resulting in three back surgeries and  implantation of a spinal cord stimulator.  Claimant's expert testified that fentanyl use precluded claimant's employment:  "We're on a hundred micrograms every forty-eight hours. And she still has medications, Flexerill, Efexor that she uses as well. The doses, even with the activities that she has, is just--it's too high. I just think that she is not capable of working at all. I think that the -- if she tried to work even a couple of hours a day the doses would be off the charts and she would not be controlled even with the highest dose of Duragesic."  The employer provided about $250,000 in medical and lost time benefits and offered employment with accommodation but argued in its brief that claimant was "content" to collect disability and not work.  Pennewell v Hannibal Regional Hospital, 2012 Mo WCLR Lexis 117 (June 18, 2012). [Pennewell was appealed and is scheduled for oral argument on 1-15-2013, ED 98706]
ALJ:  Dierkes
Atty:  Morthland
Treaters:  Abernathie, Kennedy, Feinberg
Experts: Cantrell, Blaine 

Claimant was PTD after a roll-over truck accident that knocked his shoes off.  He  required conservative care and radio ablation  for herniated discs in his back and neck.  He reported he must lie down at times and that meds make him drowsy.  The ALJ noted that a herniated disc is a "serious injury". Medical mileage was denied when it was not documented.  Richardson v Ryan's Trucking, 2012 MO WCLR LEXIS 74. 
ALJ Allen
Atty: Lewis
Tx: Ofori
Experts: Poppa, Munneke, Koprivica, Titterington, Dreiling  

Claimant alleges the groggy effect of using tramadol daily precluded gainful employment.  The commission rejected his claim of PTD, in a 2-1 vote, although the dissent noted the deleterious effect of claimant's medications on claimant's capacity to work.  Claimant underwent 2 surgeries for a biceps injury after unloading timber from a truck and reported intractable pain that required him to take medications and daily naps.  Patten v Cedar Creek, 2011 Mo WCLR Lexis 258 (Dec. 19, 2011)
ALJ  Mahon
Atty:  Wesley, Wohlford, Colburn
Experts:  Bennoch, Cordray, Hedges, Woodward, Getter

A claimant alleges she was "constantly in a fog" due to lack of sleep and cannot drive due to pain in her back and knees and must lay down frequently. She alleges she hurt her knee in a self-defense class, and then subsequently developed chronic back and bilateral knee pain due to abnormal weight bearing. Arnold v Mo. Dept. of Correction, 2011 MoWCLR Lexis 201.

ALJ Tilley
Atty: Doug Van Camp, Gregg Johnson
Experts: Mace, Browning

A 49-year old nurse injured her back lifting a patient in 2002 and suffered chronic pain after three back surgeries, ultimately resulting in a 2-level 360 fusion and implantation of a morphine pump. Claimant's expert concluded medications impaired claimant's capacity to make any professional judgments. The Commission affirmed an award of permanent total with open medical, but reduced the compensation rate and concluded the ALJ could not award specific care based on a life care plan. The award for past medical included a staggering figure of $543,737.
ALJ Lane
Atty: Hennessey, Early
Experts Musich, England
Treaters: Coyle, Sheehan, Kennedy

A Dangerous Building Inspector was found  unable to work as a result of a 2002 accident when his right foot became stuck in a hole, based on a 88-page opinion affirmed by the Commission.  Pace v. St. Joseph,
2011 MO WCLR Lexis 166. Claimant, 59,  developed a  cascade of problems following a knee surgery for a torn meniscus: DVT, RSD, and reactive depression.  His wife testified he is no longer a happy man and cannot play golf or scuba dive.   As a result of instability, he describes several subsequent falls at work until he was fired in 2005.  He states his leg continues to "kill" him and his world moves "in slow motion."  The administrative law judge found claimant required "massive" amount of narcotics. Claimant states he subsequently fell and injured his shoulder and developed carpal tunnel from using crutches.  The employer relied upon an expert who agreed claimant was unemployable, but attempted to apportion the condition in part to pre-existing conditions.  A bone scan  did not corroborate findings of complex regional pain syndrome and some of the doctors disputed the diagnosis and basis for claimant's complaints of chronic burning pain.
ALJ  Miner
Atty:  Creedy, Shine, Eisfelder
Experts:  Abrams, Titterington, Koprivica

Claimant received PTD benefits flowing from a 1999 incident as a result of trying to move a 350 pound pump, resulting in treatment for chronic back pain, piriformis syndrome and depression. ALJ Meiner found claimant's symptoms credible that he could never return to work including his complaints of frequent pain, falling down, and heavy narcotic use of medication. Claimant consulted a doctor before the accident for radiculitis, and did not identify a work-history during two initial medical visits, but a company nurse and co-worker were aware of the accident. The employer had been ordered to provide treatment previously in a temporary award. It is not clear why the case took more than 10 years to proceed to a final hearing. The case is Gibbons v The Quaker Oats Co., 2010 MO Lexis WCLR 57.
Attorneys; Knepper, Johnson
Experts: Koprivica, Crislip, Abram, Schmidt, Titterington, Poppa, Montaya, Quintero
ALJ: Meiners - PTD

In Kuhnlein v City of Kansas City, 2010 MO WCLR Lexis 96, the adminstrative law judge found, in a second injury fund claim of PTD benefits, vocational testimony unpersuasive that claimant was permanently and totally disabled based on claimant's use of narcotic medication, when the use pre-dated the primary low back strain. The judge also found unpersuasive that claimant didn't introduce evidence of vocational test results becuase of his dependence on narcotics.

ALJ: Mueller
Expets: Titterton, Walker

Claimant preivously used narcotics "to work" supported claim for permanent and total disability benefits for claimant sawyer with chronic shoulder and back pain. Vermillion v The Layman Co., 2011 MO WCLR LEXIS 228 (11-10-11)
ALJ Holden
Atty: Wise

Experts: England, Eldred

Claimant did not establish that she was permanently and totally disabled due to chronic pain that required daily Fentanyl doses, although her expert testified that drug side effects and pain complaints precluded her capacity to work. The administrative law judge noted that claimant's reported "need to lie down" was not corroborated by medical recommendation or restriction. Claimant was a 63-year old card dealer injured in 3 accidents in 2002-2003 including a repetitive trauma claim to her shoulder from dealing cards and a back accident from falling at work. She ultimately underwent shoulder surgery for "calcium buildup" and percutaneous discectomy for markedly degenerative thoracic discs, with no prior history. The employer had advanced $20,000 for the 8 year old case. The Commission affirmed 2-1 in Carter v Harrah's North Kansas City,  2011 MO WCLR Lexis 5.
ALJ Miner
Atty: Manson, Fox, Fleet
Experts: Stuckmeyer, Condray, Clymer, Thomas

Claimant lost a permanent total claim against the second injury fund, due to lack of credibility that he needed to lie down during the day and that he had disabling anger management issues. Claimant settled with the employer and received a partial disability award against the second injury fund for prior psychiatric, hand and knee conditions.

The administrative law judge compared the impact of claimant's pre-existing conditions on his ability to compete for and maintain employment. Claimant sustained employment as an iron worker for 35 years prior to his accident. He pursued only minimal conservative treatment for his bulging disc , and he settled his claim against the employer for back and psychiatric disability for a "mere" 15%. Claimant's psychiatrist expert rated 40% pre-existing disability and included factors such as a prior "chaotic family" and personality disorder. A witness confirmed that police had been called at work because of claimant's anger management issues.

The administrative law judge considered claimant's prospects of future employment. Although the PTD statute considers "any" employment, claimant stated he would not consider jobs that did not pay an appropriate salary. The administrative law judge further concluded that more effective recent psychotropic drugs made "it is reasonable to believe Claimant’s chances of securing and maintaining employment in the future will improve."
Roberson v Ben Hur Construction, 2010 MO WCLR Lexis 117.
ALJ Landolt
Experts: Volarich, Stillings, Gonzalez
Atty: Sievers, Barnard

A 38-year old failed to convince the Commission that she was PPD and not PTD due to prior conditions which included substance abuse.   The claimant argued the effect of narcotics impaired her capacity to concentrate and work with others and hindered her ability to return to a former job as an emergency dispatcher.    Watson-Spargo v Treasurer of the State of Mo., 370 S.W.3d 292 (Mo. App. 2012).  The dissent indicated no deference was required when the Commission based its opinions on flawed reasoning, and that the vocational expert relied upon in the decision never expressly made the finding that an employer would be reasonably expected to hire claimant.
Experts: Koprivica, Franks, Swearingin

A 56-year old claimant receives permanent and total disability benefits because she states she can't sleep, can't stand, and has to take narcotics every day as a result of an injury to her ankle when she fell on a shoe string while working as a housekeeper.  The treating surgeon felt she required a cane following repair of her achilles' tendon repair and restricted climbing, prolonged standing, lifting, and carrying. Her employer wouldn't take her back to work with a cane and she went on social security disability. A vocational expert concluded she was unable to work due to a combination of her ankle injury and pre-existing conditions and that her restrictions limited her to less than full sedentary work. "Claimant's daily use of narcotic pain medications, sleep disturbances, and the need to recline are evidence that she is permanently and totally disabled as a result of the last injury alone." The ALJ limited future medical to physical therapy and ankle braces alone and declined open medical for narcotics. "[R]ecords indicate that the claimant was already on narcotic pain medication prior to the work injury" but "claimant was able to work in a Heavy physical demand level job without restriction prior to the injury of July 2, 2008. Mr. Eldred was unable to indicate any job duties claimant was unable to perform prior to July 2, 2008 based on her pre-existing conditions." Claimant states her left ankle swells unless she elevates it. The award indicates she is over 300 pounds and had just returned to work for the employer part-time following surgery to the left knee. Thompson v Frene Valley Healthcare, 2012 Mo. WCLR Lexis 134 (July 2, 2012).
ALJ Dierkes (2-0 affirmed)
Atty: Barnes
Experts: Eldred, Carr
Treater: Trevino

Wednesday, July 27, 2011

Fail to provide expert: lose case

The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting that the Fund failed to produce an expert witness to refute claimant's conclusions and failed to provide sufficient evidence to discredit her testimony.   Thompson v Super 8 Motel, DOLIR 7-26-11. 

Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002.   Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment.   The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her   symptoms might also be consistent with an annular tear.   He couldn't comment on the significance of any annular tear.  "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."

ALJ:  Strange
Atty:  Green, Rodman
Experts:  Cohen, Straubinger, Shea

The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia.  A dissenting  commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis.  Gentry v Kraft Food Inc., DOLIR 8-11-11.

Tuesday, July 19, 2011

287.220(5) interest: SIF liability

Claimant entitled to pre-judgment interest against second injury fund

A claimant may recover pre-judgment interest against the second injury fund under "liberal" construction for unpaid bills of an uninsured employer, according the western court of appeals, reversing the Commission which found interest owed only after an award.  Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012).

Judge Welsch  noted that 287.220 did not expressly prohibit interest.  The court applied the general interest statute and cases addressing interest against employers.  Claimant must satisfy the three prong test of  McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo. App. 1997),  which allowed interest in some cases against employers pursuant to 287.160. The expenses must have been due at the time of the demand, the amount of the expenses must have been readily ascertainable, and payment must have been demanded.In order to prove that expenses were "due" at the time of the demand, Eason must prove that he "paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay in payment.  The Fund had stipulated or did not dispute claimant had a "loss", which was the first prong.  The court  noted that at oral argument, the parties were unable to explain the loss required to satisfy this element.

The court declined to address whether strict construction mandated by statutory reform would produce a different result. The Court found  interest began to accrue potentially once the claimant added the Fund as a party while the case remained pending.

Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills.  The employer went into bankruptcy.  The employer's Oklahoma  insurance policy did not cover the accident which occurred in Missouri.  The administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured.  The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.

The claimant asserted that   408.020 required the Fund to pay interest.  The commission denied interest for two reasons:  the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed.  Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers.  The employer "shall" pay the bills under the mandate of 287.140.1.  The second injury fund, however, is not obligated by similar mandatory  language and  287.220.5 indicates that funds "may" be withdrawn.  The commission noted it was well-established that the Fund could owe for interest under certain circumstances.
ALJ:  Fisher
Atty:  Doyle, Hammers
Experts:  Geist