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