Thursday, June 9, 2011


Employer criticized for unsupported argument
The Commission awarded the ratings of claimant's expert in a slip and fall parking lot case which included a trimalleolar fracture, a SI joint strain and a "possible" meniscus tear.  The Commission criticized the employer for advancing legal arguments which its counsel conceded were not supported by the record and making "personal attacks" on the ALJ.  A dissent noted the employer demonstrated a "lack of candor toward this tribunal to be emblematic of employer's overall approach to this case" including not responding to requests for treatment.   Whorton v Silgan Container, 2014 Mo WCLR Lexis 97 (Aug 1, 2014).
ALJ  Rebman
Atty:  McNamara, Billam
Experts:  Kneidel, Clymer

Confusing standard of review
The Court found the award by the Commission that affirmed PTD against the Fund did not warrant de novo review because the SIF did not invoke a question of law instead of a battle of credibility of the experts even though they 'packaged' their appeal to suggest otherwise.  The court identified evidence that the commission found  partial disability from the last accident alone, noting among other evidence that claimant before the accident complained regularly about his symptoms to a coworker, was "short-tempered" and visited a chiropractor regularly.  Brandenburg v Treasurer of the state of Mo, No. SD 32849 (Mo. App.  4-18-2014). 

Preserving an issue on appeal
The court of appeals sharply criticized the second injury fund because it barely complied with rules on appeal to state an alleged error with "specificity,"  its appeal was not a model of clarity, and it barely satisfied the statutory requirements  in the "thinnest way" possible.  Claimant  objected to the Fund's appeal on lack of "jurisdiction" but had not raised the issue in a motion to dismiss the application.  The court  distinguished between whether there was jurisdiction (based on the timeliness of the appeal) and authority (based on preserving the alleged error).   The court did not adopt the argument that the Fund had taken inconsistent positions and was estopped by alleging claimant was not PTD originally and later blaming any PTD on the last accident alone.  Payne v Treasurer of the State of MO, 2014 MO. App. Lexis 35 (January 14, 2014). 

Appeal to commission that ALJ is not impartial
The Commission rejected the employer's appeal that the ALJ Meiner adopted a proposal from claimant's counsel and was not impartial. Courtney v Clay County Health System, 2013 Mo WCLR Lexis 222 (Dec. 11, 2013).  The Commission added additional findings that claimant's testimony was consistent with her medical records and rejected contrary testimony of two witnesses:  "employer/insurer points to the seemingly crystal clear memories of two co-workers who purport to have mentally processed and stored minute details of what the co-workers describe as a non-event. Experience tells us that individuals seldom recall insignificant events in such great detail."
Atty: Kelly, Richerson

Appeal to Commission to add social security addendum
 Zorich v Anheuser Busch, DOLIR 3-27-2013.

Lack of clarity in claimant's brief did not warrant dismissal
The court of appeals declined to dismiss an appeal by a claimant even though the brief is not a "model of clarity" and allegedly violated Rule 84.04(d)(2).  Dillon v Archetectual Materials Co., SD 31908; 2013 MO App. Lexis 264 (March 4, 2013).

Employer criticized for  poorly written brief
The employer disputed liability for PTD benefits for a worker who reports he has to rest 2-3 times a day due to unresolved pain after a back surgery.  Claimant's expert contended he was not a candidate for rehabilitaton due to chronic pain and reactive depression.  The employer relied upon a FCE releasing claimant to medium work and a records review from a vocational expert who concluded claimant could work.   The court of appeals affirmed the PTD award and criticized the employer's brief for poor organization, citing irrelevant authority and citing errors which were not preserved for appeal regarding  admission of testimony of an expert with limited credentials.  The court considered the argument without merit that limitations from claimant's age or education shielded the employer from liability for the 'last accident alone'.  Grauberger v Atlas Van Lines,  2013 Mo App. Lexis 265.
Experts:  Russell, Bennoch, Eldred

SIF Appeal criticized for errors and omissions
The second injury fund brief failed to comply with briefing rules, does not contain a proper statement of facts, distorts the record and mischaracterizes testimony.  The Commission affirms a finding that the 57 year old claimant is a PTD combo.  He had incurred more than 1/4 million in medical charges for multiple surgeries.  Claimant asserts that he is unemployable due to the last injury alone, contrary to the opinion of his own experts.   Wheat v State of Mo., 3-1-2013.
Atty  Van Camp , Thudium, Nelson
ALJ Zerrer
Experts:  Volarich, Eldrid

Application of review limits issues in dispute
The party waived an claim for medical bills when the issue was not preserved on the application for review.  Abt v Miss. Lime Co., 2013 MO WCLR 51 (3-6-13)   The Commission "re-considered" the evidence on remand and concurred claimant continued to fail to prove PTD despite supplemental medical reports from his expert supporting the claim. 

Failure to object to evidence waives error
The failure to object to the omission of the CV of the claimant's expert did not preverse the objection that claimant failed to produce a complete medical report.  Claimant attempted to supplement the record with the CV after the record closed.   Allgier v Claru Deville Healthcare, 2013 MO WCLR Lexis 32.

No error based on ineffective assistance of counsel
Claimant failed to prove his bilateral hip surgeries as a result of avascular necrosis flowed from activities at work moving 300 pounds of material, when his treating surgeon testified that's not "how it works" and had more knowledge of claimant's symptoms of prior problems. Claimant stated he woke up the next day with pain. Claimant appealed alleging ineffective assistance of counsel, and had attempted to rely upon the opinion of his expert, a neurologist, and research from Wickipedia. Claimant failed to preserve as error when no parties appeared in response to subpoena. The case is Hayden v Ameriwood Industries, Mo WCLR Lexis 115. 
ALJ Kohner
Experts: Cohen
Treaters: Albus

Failure to explain error. 
Claimant alleges the Commission wrongfully denied her benefits when she was walking down the hall when her knee popped out of place, and that her case was distinguishable from Miller v Mo. Highway and Transportation. The court concluded claimant's case may be distinguishable, but found under its limited standard of review sufficient competent evidence to support the denial even if claimant had offered some evidence to contradict the factual finding. Claimant failed to explain why she believed there was not competent evidence to support the decision.  Bailey v Phelps County Regional Medical Center, 328 S.W.3d  770 (Mo. App SD 2010)
Atty: Logan, Beekley, McChesney
Judge: Rahmeyer

No proof that Commission abused its power dismissing appeal
Claimant offered no proof that the Commission abused its power dismissing an appeal, or even preserved the error, in an appeal from a slip and fall on a sidewalk case that the Court describes as indecipherable. Dickens v Hannah's Enterprises, 360 S.W.3d 810 (Mo. App. SD 2012),  2012 Mo. App. Lexis 100
Atty: Easter, Musick

Strict construction -  no  separate credibility finding required
The Commission reversed an award of disability and concluded that claimant failed to prove that his cervical disc surgery or undiagnosed symptoms of impaired ability to speak, hear or talk flowed from lifting a box or working 13 years as a library assistant due to inconsistent medical histories. The Court of Appeals rejected the legal argument that strict construction prevented the Commission from denying the claim and reversing a credibility finding without a separate hearing, a position established under the former liberal construction standards since 1931. Snyder v Consolidated Library District No. 3, 306 S.W.3d 133 (Mo. App WD 2010)

Penalties for appeal
The western court of appeals  awarded $81,609 in attorney’s fees for making a constitutional challenge that the employer had a right to appeal a temporary award, contrary to a state rule and unfavorable precedent.  Motor Control Specialties, Inc. And the Ohio Casualty Ins. Co. v. Labor and Industrial Relations Commission, State of Mo., Stephen M. Petelik, 323 S.W3d  843 (Mo. App. 2010) The Commission in 2008 sanctioned the employer $228,000 for not complying with a temporary award.

Petelik reached the court of appeals 3 times since 2006. The court originally dismissed the appeal in 2006 due to lack of jurisdiction because the award was not final and the employer was not denying all liability. The employer sought a declaratory judgment that a state rule limiting appeals until a “final” award has been entered is unconstitutional. The court of appeals in 2008 reversed a dismissal of a declaratory judgment. The employer appealed a third time in 2010 when the trial court found the state rule limiting appeals constitutional and awarded attorney’s fees.

The case involved a 2003 back injury, in which the 41-year old claimant was found in a final 2008 award to be permanently and totally disabled for low back syndrome following a fusion. The employer did not dispute accident and had made nominal medical payments, but disputed causation based on late notice and belated symptoms until claimant went on a fishing trip several days later. The employer waived defenses to any factual claims in the petition as a result of a late answer. The administrative law judge in the final award opined the employer’s defenses were questionable, but not unreasonable, and did not awarded attorney’s fees. The Division doubled an award for non-compliance of the original temporary award ordering benefits and medical treatment, resulting in a final award of permanent total at $388.78 per week for life, future medical, $457,845 of past accrued benefits, including about 238 weeks of TTD and $272,000 in medical and penalties. Claimant went into bankruptcy following the accident, and obtained a two-level fusion through his wife’s insurance.

The court of appeals affirmed the denial of declaratory judgment; based on de novo review the trial court did not misapply the law. The employer has no constitutional right for review of intermediate decision making, and the rule did not thwart judicial review of a final decision.

The employer argued that the statute to allow review of “any” awards conflicted with a rule limiting review only of final awards. The court construed legislative intent through other provisions to distinguish between final and temporary awards. The court noted that §287.490 only provided review of “final awards” to the court of appeals, and it was “absurd” to allow review of temporary awards to the Commission and not to the court of appeals. The court noted the statute distinguished when an ALJ could modify a temporary or final award.
The trial court did not exceed its mandate to award attorney’s fees, when the mandate was a “general” mandate. The award of attorney’s fees fell within an exception to the general American rule based on the collateral litigation exception. Judge Newton considered the “equities” between the parties supported the award of attorney’s fees, the employer/insurer was “well-funded” and the claimant was not; the employer breached a statutory duty and “reneged” to pay an injured worker who receives an award; and the employer pursued injunctive relief instead of complying with the temporary award. Claimant was deemed a “prevailing party” as the employer originally named him as a party, but then dismissed claimant from the appeal.
ALJ: Landolt, Wenman
Attorneys: Leahy, Layton, Brown, Morgan, McClitis
Experts: Curylo, Poetz

Claimant, 37, alleges he developed reactive airway disease from ammonia fumes while working in old warehouses and from a sudden "burst" exposure in 2008Fall v Matt Miller, 2014 Mo WCLR Lexis 37, (March 17, 2014)

Claimant underwent testing suggesting reactive airway dysfunction syndrome.  The treating physician did not provide a causation opinion.    Dr. Koprivica indicated that claimant's exposure was a plausible explanation for his symptoms.  The employer offered no medical opinion, although it obtained a medical exam but never produced the report.    The ALJ found the employer's chemical engineering expert relied upon inaccurate assumptions regarding the remediation process with water instead of a vacuum device. 

The Commission reversed a denial of fees requested by the claimant and awarded $1200 for the cost of the appeal based on a rate of $200 an hour.  It noted the brief "does not raise an argument premised on any evidence in the record or supported by any legal authority. In the Motion, employee argues that employer ignores controlling case law authority as to the issue of notice."  It notes the  "offense is egregious. In its brief and at oral argument in this matter, employer failed to advance a single colorable argument that would support our disturbing the administrative law judge's award in any  way. Employer's counsel conceded that employer did not provide any expert medical testimony to rebut that advanced by employee, but argued that the issue in this case is whether the Commission can rely on "pure opinion" evidence in resolving issues of medical causation. We are perplexed by this statement, as it seems to ignore fifty years of Missouri case law...."

ALJ Wilson
Atty: Alberhasky, Wendler
Experts:  Koprivica

Illinois mail box rule rejected or appeals to circuit court.  
Appealing a decision of the commission to the circuit court was out of time when the circuit clerk file stamped the documents 24 days later because the documents were not "within 20 days of the receipt of notice of the decision", rejecting application of the mailbox rule.  As 19(f)(1) did not create an express exception for the mailbox rule, the circuit court lacked jurisdiction.  A dissent noted this was inconsistent as the mailbox rule was applied when appealing a decision of the arbitrator or the circuit court.  Gruszecka v The Illinois Workers' Compensation Commission, etal, 2012 Ill. App 2d  Lexis 107.

The western court of appeals strictly enforces a rule that requires a party to state specifically what is wrong with an award on an appeal to the Commission, shutting down the employer's right to contest an award of permanent and total disability benefits, medical charges and costs, in the recent case of Jones v Lico Steel, No. WD69637, 280 S.W.3d 713  ( Mo. Ct. App. 2009).

In the case, the Commission dismissed an appeal where the employer argued that the award was "contrary to medical and expert evidence." The Missouri rule 3.030 requires a party to state any points of error with specificity and not to merely state the findings and conclusions are not supported by the evidence. The Eastern District had liberally allowed an appeal to go forward with similar allegations in Isgriggs v. Pacer Industries, 869 S.W.2d 295, 296 (Mo. App. E.D. 1994) The Western District in Jones found the argument that the decision was not supported by the medical evidence violated the rule to argue that the decision was not supported by the evidence when most of the evidence in the case was medical evidence.

In Jones, Judge Smart in a concurring opinion suggested rigorous enforcement of the rule may create no prejudice when a party can provide further specificity in oral arguments or by filing a brief with the Commission but noted the public policy to avoid meritless appeals and

"is to deter employers/insurers from petitioning for review merely for purposes of delay or negotiation when the employer/insurer has no good faith opinion that grounds of appeal exist. In such a case, the employer/insurer may simply hope to later scan the transcript to find something to argue in order to delay the ultimate resolution, in hope that the claimant is under such financial distress that the claimant allow a significant discount in the award just to avoid the delay of an appeal."  The award of costs in the case suggests possible issues regarding the merits of the employer's earlier defenses. The court of appeals could have clearly awarded further costs if it considered an appeal frivilous without the draconian measure of shutting down an opportunity for review of a permanent total award.

This case is a clear warning to employers to state specifically what is wrong with a decision early in the appeal, and to demand similar strict compliance when an employee's sloppy applications for review lack specific details.